Court Finds That Scheduled Injury Notice is Final

Mattos v. Starwood/Zurich, (Court of Appeals, Division One, Memorandum Decision, filed 7/2/2015)

The issue in this unpublished Memorandum Decision from Division One of the Court of Appeals is whether the original notice of permanent disability, which closed the claim with a scheduled disability for a shoulder and elbow injury, was void on its face and whether the claim should be closed with an unscheduled disability following a petition to reopen.

On May 28, 2009 the applicant was working in the laundry department of the Wigwam Resort when he slipped and injured his left elbow and shoulder. His orthopedist provided conservative treatment and eventually found his injury to be medically stationary with a 26% impairment of the upper extremity. The carrier closed the claim in March 2011 with a scheduled permanent impairment to the left upper extremity. Applicant did not protest the closure, and it became final. In 2013 the applicant filed a petition to reopen which was denied. Following hearings the Administrative Law Judge (ALJ)  granted reopening and re-designated his permanent impairment as unscheduled. The carrier requested review. On review the ALJ vacated and amended portions of the award and the claimant filed a special action.

The Court of Appeals held that the attending physician’s report which formed the basis of the closure was not directly contrary to the notice which closed the claim with a scheduled impairment. While he described subjective complaints in the shoulder, he did not make any specific findings as to shoulder disability. The Court reasoned that the principles of res judicata are concerned with finality, not correctness. The March 2011 notice of permanent disability became final after 90 days when it was not protested.

 

 

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