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Leprino Foods Co. v. Industrial Claim Appeals Office of the State of Colorado12/1/2005
ORDER AFFIRMED IN PART AND SET ASIDE IN PART
Piccone, J., concurs
Dailey, J. dissents
In this workers' compensation proceeding, Leprino Foods Company and its insurer, Ace, U.S.A. (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that Brenda Rivera (claimant) (1) had not waived the right to a division-sponsored independent medical examination (DIME) on the issue of maximum medical improvement (MMI) by seeking and accepting a lump sum payment of permanent partial disability (PPD) benefits; (2) was not yet at MMI; and (3) was entitled to additional temporary total disability (TTD) benefits for her industrial injury and related subsequent shoulder symptoms without application of a statutory cap on benefits. We affirm the order in part and set it aside in part.
Claimant sustained an injury to her right elbow in February 2001, and employer filed a general admission of liability admitting that the injury was compensable. An authorized treating physician (ATP) surgically repaired a tendon in May 2001. Employer accommodated the restrictions that the ATP imposed and returned claimant to work with modified duties.
In October 2001, the ATP referred claimant to another physician for an impairment rating. The rating physician issued a March 2002 report placing claimant at MMI with a twenty-seven percent impairment of the right upper extremity. Claimant was placed under permanent restrictions that precluded her from returning to her regular employment.
On April 16, 2002, an insurance adjuster prepared a final admission of liability (FAL), which admitted liability for PPD benefits based on the rating physician's extremity rating. Employer's safety supervisor testified that at a meeting on April 18, 2002, claimant asked him whether these PPD benefits could be paid in a lump sum, but because he did not know the answer, he called the adjuster, who spoke to claimant. Following that conversation, claimant sent a handwritten note dated April 18 to the adjuster stating, "I would like to receive my disability rating in one lump sum of $8,431.76."
On April 23, 2003, claimant again met with the employer's safety supervisor. Following this meeting, the supervisor terminated claimant from employment because she could not perform her regular duties and employer had no jobs available that were within her restrictions.
Thereafter, claimant retained counsel who, on April 29, filed an objection to the FAL and a notice and proposal to select a physician to conduct a DIME. Also on April 29, employer paid the lump sum claimant requested in her handwritten note, which represented the discounted and remaining balance of the admitted PPD award. These two actions -- accepting PPD benefits while at the same time contesting MMI -- underlie much of the controversy in this case.
Employer did not object to the request for a DIME physician. In an August 2002 report, the DIME physician opined that claimant was not yet at MMI. He made several diagnoses, including right radial nerve entrapment and "chronic right shoulder pain and decreased range of motion with evidence of possible frozen right shoulder . . . due to the chronic pain and reduced usage of her right arm." The DIME physician recommended further diagnostic studies and various drug therapies.
Employer took no action on the DIME physician's report. It did not contest the DIME physician's finding on MMI or file an amended FAL for TTD benefits. Claimant then applied for a hearing, seeking TTD benefits from the date she was terminated from employment.
The administrative law judge (ALJ) found tha
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