IN THE MATTER OF THE CLAIM OF HARLEY BARFOOT, Claimant, v. XCEL ENERGY, Employer, and ST. PAUL FIRE MARINE CO., Insurer, Respondents.

W.C. No. 4-540-676.Industrial Claim Appeals Office.
October 14, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated July 15, 2009, that denied and dismissed the claimant’s petition to reopen. We affirm.

This matter has previously been before us. In an order dated January 13, 2009, the ALJ concluded that the claimant’s petition to reopen should be denied and dismissed. In making that determination, the ALJ made the following findings of fact. The claimant suffered an admitted work-related injury to his lower back on August 22, 2001. The claimant filed his petition to reopen on December 7, 2007. The claimant filed his petition to reopen six years and 108 days after his date of injury. Therefore, the claimant filed his petition to reopen outside the limitations allowed under § 8-43-303(1) C.R.S. 2009. The last date the claimant’s permanent partial disability (PPD) benefits became due or payable was April 13, 2005. The claimant filed his petition to reopen two years and 209 days after the last date PPD benefits became due or payable. Therefore the claimant filed his petition to reopen outside the limitations allowed under § 8-43-303(2)(a) C.R.S. 2009. We note that there appears to be no dispute involving these facts.

On appeal of the January 13, 2009 order the claimant had argued that the benefits history portion of a final admission of liability (FAL) filed by the respondents had asserted that PPD benefits would be paid through May 17, 2006 was misleading. In an order dated April 16, 2008, we remanded the matter for specific findings on whether the two-year statute of limitations should have been equitably tolled.

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On remand, the ALJ made extensive findings on whether the two-year statute of limitations should have been equitably tolled. The ALJ found that in contrast to the benefits history of the FAL the evidence presented at hearing by the respondents demonstrated that the insurer actually issued the final payment of PPD much earlier on April 13, 2005. The ALJ found that the claimant failed to present persuasive evidence or testimony required to establish the factual foundation to equitably toll the statute of limitations governing the time within which to file his petition to reopen. Therefore, the ALJ denied and dismissed the claimant’s petition to reopen. The claimant filed a petition to review the ALJ’s order.

I.
On appeal the claimant first argues that the ALJ did not have jurisdiction to enforce the statute of limitations against the claimant because Cibola Construction v. Indus. Claim Appeals Office, 971 P.2d 666 (Colo. App. 1998) requires a corrected FAL to be filed before the statute of limitations begins to run. As we understand the claimant’s argument he contends that because the respondents did not correct the FAL the statute of limitations never ran. We disagree.

We read Cibola Construction v. Industrial Claim Appeals Office as holding that parties are generally bound by uncontested final admissions of liability and further that an uncontested final admission of liability automatically closes a case as to the issues addressed in that document. In Cibola, the court found that the FAL filed by the respondents was legally insufficient to preserve a claimed credit and the respondents were bound by the admission. Contrary to the claimant’s assertion here, we do not rea Cibola as requiring a filing of a new corrected FAL before the statute of limitations begins to run.

In our view, the issue here is not whether the respondents were required to pay all of the amounts due to the claimant under the FAL as required by Cibola. It appears to be uncontested that the claimant received full payment under the FAL. Rather the issue now is whether the misrepresentation in the payment history of the FAL should result in the equitable tolling of the two-year statute of limitations.

The supreme court explained the reasons and circumstances for equitably tolling the running of the statute of limitations as follows:

The statute of limitations may be equitably tolled where the defendant’s wrongful conduct prevented the plaintiff from asserting his or her claims in a timely manner. . . . . The reasoning . . . is that it is unfair to penalize the plaintiff for circumstances outside his or her control, so long

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as the plaintiff makes good faith efforts to pursue the claims when possible. . . . `Thus, an equitable tolling of a statute of limitations is limited to situations in which either the defendant has wrongfully impeded the plaintiffs ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts.”

Brodeur v. American Home Assurance Co. 169 P.3d 139, 149 (Colo. 2007) (citing and quoting Dean Witter Reynolds, Inc., v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996)).

The supreme court further noted in Brodeur that since first stating in Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996) that extraordinary circumstances may toll the statute of limitations, it had never found such circumstances to exist. However, it is true that the statute of limitations set forth in § 8-43-303 is subject to equitable tolling under certain circumstances. See Garrett v. Arrowhead Improvement Association, 826 P.2d 850 (Colo. 1992).

The doctrine of equitable tolling has been applied in workers’ compensation claims where the claimant detrimentally relies upon a respondent’s misrepresentation or failure to provide information that the respondent is legally obligated to disclose. Id. Failing v. Burkey’s Lumber and Home Center, W.C. No. 3-047-159, (September 22, 1993). In Garrett v. Arrowhead Improvement Association, the insurer failed to provide a workers’ compensation claimant with a physician’s report detailing the worsening of the claimant’s condition. Because the rules of procedure required the insurer to provide a copy of the report to the claimant and the report was evidence which might support a petition to reopen the claim, the Garrett court determined that the insurer’s failure to provide the report could be sufficient to toll the statute of limitations for filing a petition to reopen.

Here, the ALJ made the following findings of fact with record support regarding the issue of equitable tolling of the statute of limitations. Although the insurer’s FAL incorrectly states the PPD period as running through May 17, 2006, the claimant presented no persuasive evidence to show that he was prejudiced or reasonably relied to his detriment on the incorrect benefit history section of the FAL in deciding when to file his petition to reopen. Because of information the insurer revealed in an earlier May 13, 2002 FAL, the claimant knew or should have known the insurer was paying his PPD benefits through June 12, 2003, based upon Dr. McLaughlin’s seven percent rating. In light of this finding, even if the claimant relied upon the incorrect benefit history contained in the FAL, such reliance would have been unreasonable. There was no persuasive testimony or evidence in the record to demonstrate that the claimant himself

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relied on the incorrect FAL in deciding when to file his petition to reopen. The actual date that the claimant’s PPD benefits became due or payable was April 13, 2005. The claimant presented no persuasive testimony or other evidence to establish that he was unaware that his PPD benefits ended with the final payment on April 13, 2005, instead of continuing for another year until May 17, 2006.

The ALJ concluded in this case that the claimant failed to show that he was prejudiced or otherwise relied to his detriment on the incorrect benefit history section of the FAL. Therefore, the ALJ found the claimant failed to carry his burden of establishing by a preponderance of the evidence the factual foundation sufficient to equitably toll the statute of limitations for filing his petition to reopen.

In our view, the ALJ correctly focused on the key element of reliance. See Mountainwood Condominium Homeowners Association v. Cal-Colorado, 765 P.2d 1066 (Colo. App. 1988) (a party who relies to his detriment on the affirmative promise or representation of another may invoke the doctrine of equitable estoppel if the promissor reasonably expects to induce action or forbearance of a material nature by his actions.)

The claimant’s counsel raised his reliance on the incorrect FAL in counsel’s argument. However, the statements of the claimant’s counsel do not constitute evidence in the record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71, 73 (Colo. App. 1987). Otherwise, the claimant does not appear to challenge the findings on reliance. In any event, in our view the ALJ’s findings are supported by substantial evidence and plausible inferences drawn from the record. Therefore, we must uphold the ALJ’s determination. Section 8-43-301(8), C.R.S. 2009; Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).

Here, the burden was on the claimant to establish the factual foundation for equitably tolling the statute of limitations in § 8-43-303. Tonn v. Ritz Grill, W.C. No. 4-419-470 (March 15, 2007). Under these circumstances, we cannot say the ALJ erred in concluding that the doctrine of equitable tolling did not preclude application of the statute of limitations defense.

II.
The claimant, citing Strader v. Beneficial Finance Co. of Aurora 191 Colo. 206, 551 P.2d 720 (Colo. 1976), argues that errors in the benefits section of the FAL prevented the running of the statute of limitations. The claimant argues that Strader v. Beneficial Finance Co. of Aurora does not require reliance, but just prejudice and detriment. The claimant further argues that he will have suffered prejudice and detriment if the ALJ’s order is sustained.

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Strader v. Beneficial Finance Co. of Aurora generally holds that where a party’s acts or omissions contribute to the running of the statute of limitations, the doctrine of equitable estoppel prevents it from raising the statute of limitations as a defense. However, in Strader v. Beneficial Finance Co. of Aurora the plaintiff had relied upon representations by the defendant that the annual interest rate upon the loan would be no more than 18 percent and that the defendant had failed to disclose the annual percentage rate was over 19 percent. We do not view Strader as authority that there does not have to be detrimental reliance upon a respondent’s misrepresentation for the doctrine of equitable tolling to apply here.

III.
The claimant argues that the respondents lost any right to amend the FAL because they did not timely move to do so within two years after the date the last disability payment became due or payable. The claimant argues that the ALJ erroneously enforced the statute of limitations by amending the January 26, 2005 revised FAL and therefore he was denied due process because the respondents did not file a petition to reopen.

We assume that the claimant references the well-established rule involving the automatic closure of issues raised in an uncontested final admission of liability. Feeley v. Industrial Claim Appeals Office 195 P.3d 1154 (Colo. App. 2008). However, we do not view the ALJ order as in some way amending the FAL. Rather the ALJ, after specifically finding that there was an incorrect benefit history in the FAL, additionally found that the claimant failed to show that he was prejudiced or otherwise relied to his detriment on the error in the FAL.

In our view, the analysis by the ALJ was consistent with our remand for the ALJ to determine whether the two-year statute of limitations on a petition to reopen should have been equitably tolled. The ALJ properly considered the effect of the FAL rather than determining whether the FAL could be amended. To the extent that the clamant renews the arguments he made in his initially appeal on the issue of due process we continue to disagree for the reasons set forth in our order of remand dated April 16, 2009. We have considered the claimant’s remaining arguments and find them to be without merit.

IT IS THEREFORE ORDERED that the ALJ’s order dated July 15, 2009 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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HARLEY BARFOOT, GRAND JUNCTION, CO, (Claimant).

XCEL ENERGY, Attn: KERRY KOEP, ESQ., MINNEAPOLIS, MN, (Employer).

ST PAUL FIRE MARINE CO., Attn: MICHELLE SCHOLES, C/O: CCMSI, GREENWOOD VILLAGE, CO, (Insurer).

LAW OFFICES OF JOHN A KINTZELE, Attn: JOHN A KINTZELE, ESQ., DENVER, CO, (For Claimant).

BLACKMAN LEVINE, LLC, Attn: LAWRENCE D BLACKMAN, ESQ., DENVER, CO, (For Respondents).

XCEL ENERGY, Attn: MIKE MCCALLUM, MINNEAPOLIS, MN, (Other Party).

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