W.C. No. 3-059-965Industrial Claim Appeals Office.
June 25, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which reopened the claim and awarded additional benefits. We affirm.
This claim involves a 1988 injury. Liability was admitted and the claim was subsequently closed pursuant to the respondents’ Final Admission of Liability dated June 29, 1989. On June 28, 1994, the claimant filed a Petition to Reopen which alleged a worsening of condition. The Petition was denied by Administrative Law Judge Stuber (ALJ Stuber) on October 5, 1994, and the claimant appealed. Pending resolution of the appeal, the claimant filed a new Petition to Reopen on September 15, 1994.
The September 15 Petition came before the ALJ on December 13, 1995 and December 19, 1995. Based upon the evidence presented at those hearings the ALJ determined that the claimant suffered a worsening of his condition from the 1988 injury, and therefore, reopened the claim.
On review, the respondents’ sole contention is that pursuant to the six year statute of limitations set forth in §8-43-303(1), C.R.S. (1995 Cum. Supp.), the claim is barred from reopening. Regardless, of the merits, we conclude that the respondents waived this argument.
Defenses such as res judicata, estoppel, and the statute of limitations must be affirmatively pled. See C.R.C.P. 8(c); Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963) McPherson v. McPherson, 145 Colo. 170, 358 P.2d 478
(1960). Where the defense is not pled it is considered waived See Kersting v, Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
As argued by the claimant, the respondents did not assert the statute of limitations defense in their September 29, 1995 “Notice of Contest” to the Petition to Reopen. Nor did the respondents assert this defense on their November 29, 1995 Response to the Application for Hearing. Further, we have reviewed the transcripts and the respondents did not assert the statute of limitations defense at any point during the hearings. (Tr. December 13, 1995, pp. 34-36, 38-41, 53; December 19, 1995, pp. 3, 28, 30 ).
Rather, the statute of limitations defense was raised for the first time in the respondents’ “Brief in Support of Petition for Review.” Consequently, the defense was waived, and we may not address the issue on appeal. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995) (parties may not raise arguments on appeal which they did not raise before the ALJ) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 21, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court ofAppeals, 2 East 14th Avenue, Denver, CO 80203, by filing apetition for review with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all otherparties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995Cum. Supp.).
Copies of this decision were mailed June 25, 1996 to the following parties:
Garry H. Dagley, 30 Pierce St., Lakewood, CO 80226
Nielson’s, Inc., P. O. Box 1660, Cortez, CO 81321-1660
Home Indemnity Company, 6000 Greenwood Plaza Blvd., Greenwood Village, CO 80111
James E. Elliott, Jr., Esq. and Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For Claimant)
Stephen R. Higgins, Esq., 1290 Broadway, #807, Denver, CO 80203 (For Respondents)
BY: _______________________