W.C. No. 4-540-676.Industrial Claim Appeals Office.
April 16, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated January 13, 2009, that denied and dismissed the claimant’s petition to reopen. We set the order aside and remand for entry of a new order.
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. 2008. 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. 2008. The ALJ concluded that the claimant’s petition to reopen should be denied and dismissed.
I.
On appeal, the claimant contends that he was denied due process of law because the respondents failed to give sufficient notice of the affirmative defense that the claimant failed to file his petition to reopen within the time period allowed under § 8-43-303(2)(a). The claimant argues that the respondents had not given notice of their contention that the claimant’s PPD benefits were actually fully paid out by April 13, 2005 instead of being paid through May 17, 2006 as indicated in the benefit summary of the respondents’ January 26, 2005 final admission of liability (FAL). We are not persuaded that the claimant was denied due process of law.
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The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
Here, the respondents in their response to application for hearing listed among the issues to be heard at the hearing the statute of limitations relating to the petition to reopen and, specifically, whether the claimant’s petition to reopen was filed more than six years from the date of the injury or more than two years from the date compensation last became due and owing. In addition, the respondents at the inception and conclusion of the hearing affirmatively set forth their position on the statute of limitations. Tr. 7, 77-84. Further, the respondents put into evidence, without objection, an indemnity payment printout, which showed the dates that payments of compensation were made relevant to the last date PPD benefits became due or payable under § 8-43-303(2)(a). Exhibit K; Tr. at 6. Under these circumstances, we cannot say that the claimant was denied due process of law.
II.
The claimant next contends that the ALJ erroneously failed to rule on the equitable tolling of the statute of limitations. The claimant argues that in the benefit history portion of the FAL the respondents asserted that PPD benefit would be paid through May 17, 2006. In contrast, at the time of the hearing the respondents demonstrated that in fact the insurer actually issued the final payment of PPD much earlier on April 13, 2005. The claimant argues that the respondents’ misrepresentation of the period of time that the PPD benefits would be paid over should equitably toll the running of the statute of limitations under § 8-43-303(2)(a). The claimant concludes that the ALJ’s order failed to address this issue. We remand the matter for specific findings on whether the two-year statute of limitations should have been equitably tolled.
Here, the ALJ found that the benefits history section of the FAL “misrepresented” the payment history of the overall PPD award and failed to reflect that the insurer had previously paid a prior PPD award. The ALJ noted that the FAL reflected that the insurer paid out the PPD award through May 17, 2006. However, the ALJ, crediting the insurer’s indemnity payment printout (Exhibit K), found that the insurer issued the final payment by check about April 13, 2005. At the time of the hearing, the ALJ orally ruled that the statute provides that the actual date of payment was the critical date and that the
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statement in the FAL regarding the indemnity payout was irrelevant. Tr. at 84. Therefore the ALJ determined the petition to reopen was not timely filed.
In Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850 (Colo. 1992), the Supreme Court of Colorado held that a remand was necessary on whether claimant was prejudiced by the carrier’s failure to furnish the claimant with copy of the treating physician’s report indicating that his back problem had worsened, for purposes of determining whether the two-year statute of limitations on a petition to reopen should have been equitably tolled. In remanding the case, the Garrett court noted the general principle that a party should not be permitted to take advantage of his own wrong. Consequently, the court stated the following:
“Equity will toll a statute of limitations if a party fails to disclose information that he is legally required to reveal and the other party is prejudiced thereby. [Citation omitted] . . . It is necessary to determine the extent of Garrett’s knowledge concerning the medical diagnosis that his condition had worsened to ascertain whether the Fund’s failure to furnish the [medical] report truly prejudiced him.” 826 P.2d at 855.
Respondents assert that Garrett allows equitable tolling of the statute of limitations only where a party fails to disclose information, which it is legally required to reveal. The respondents argue that here, in contrast to Garrett, there was no evidence that the respondents failed to exchange any document that they were legally required to send to the claimant. The respondents further note, with record support, that the claimant did have the information necessary to calculate correctly when the last PPD benefit check became due or payable because he had actually received those checks as evidenced in their indemnity payment printout.
However, here the FAL was printed on Workers’ Compensation Form 4, which was created by the Division of Workers’ Compensation. This form is available on the Division of Workers’ Compensation website. This form includes a section for a benefit history, which further provided for the type of benefit and the time period that benefit was paid through. W.C. Rule of Procedure Rule 5-1(A), 7 Code Colo. Reg. 1101-3 provides that “[information required on Division forms shall be . . . completed in full and in accordance with Division requirements as to form and content.” It is uncontested that that the benefits history section of the FAL misrepresented the payment history. Further, the claimant did raise his reliance on the FAL, which on the face of it indicated that payment of permanent partial disability benefits would run through May 17, 2006 and therefore the two-year time period of § 8-43-303(2)(a) for filing a petition to reopen would run through May 17, 2008. The claimant also specifically raised the issue of tolling of the statute of limitations. Tr. at 79. Moreover, we note that parties are
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generally bound by uncontested final admissions of liability. See, e.g., Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666
(Colo.App. 1998) (employer bound by final admission and must pay accordingly).
We do not read the ALJ’s order as containing findings or conclusions as to whether the claimant established any circumstances sufficient to apply the doctrine of equitable tolling. Garrett v. Arrowhead Improvement Ass’n, supra; see also Failing v. Burkey’s Lumber and Home Center W.C. 3-047-159 (September 22, 1993); Azar v. Storage Technology Corporation W.C. 3-826-876 (December 13, 1993). Under these circumstances, in our view the ALJ must specifically determine where the claimant bore his burden of establishing the factual foundation for equitably tolling the statute of limitations.
Further, we may not conclude that the ALJ implicitly rejected the contention that the two-year statute of limitations was equitably tolled. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also, Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (basis for an order, including credibility determinations, must be articulated). The ALJ’s order does not address the issue of whether the two-year statute of limitations on a petition to reopen should have been equitably tolled. Consequently, the matter must be remanded for that purpose. Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).
Because we conclude the ALJ’s current order lacks sufficient findings, we should not be understood to express any opinion on the ultimate issue whether the two-year statute of limitations on a petition to reopen should have been equitably tolled. We merely direct the ALJ to reconsider the record as presently constituted and enter a new order consistent with the views expressed herein.
IT IS THEREFORE ORDERED that the ALJ’s order issued January 13, 2009 is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
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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: CCMSI, C/O: MICHELLE SCHOLES, 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).
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