W.C. No. 4-222-069Industrial Claim Appeals Office.
November 7, 2002
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Coughlin (ALJ) which denied the claimant’s petition to reopen. We affirm.
The following facts are undisputed. The claimant suffered a work-related injury on July 21, 1994. The respondents filed a Final Admission of Liability on September 16, 1996, which terminated its liability for previously-admitted temporary disability benefits and admitted liability for permanent partial disability benefits at the rate of $247.92 per week for the period October 11, 1995, through June 1, 1998. The permanent partial disability award was based on the Division-sponsored independent medical examination (DIME) physician’s 17 percent whole person impairment rating.
The claimant timely objected and requested a hearing to overcome the DIME physician’s rating. The claimant also requested benefits for permanent total disability.
In an order dated August 29, 1997, an ALJ denied the claims for permanent total disability and additional permanent partial disability benefits. We affirmed that order on appeal.
On January 18, 2000, the respondents filed an amended Final Admission of Liability which listed the previously paid benefits and admitted liability for future medical benefits. The claimant subsequently filed a petition to reopen on November 13, 2001, which alleged a change of condition. The claimant also applied for a hearing on the petition and permanent total disability.
Section 8-43-303(1), C.R.S. 2002, provides that where a petition to reopen is filed within six years of the date of injury, the claim may be reopened based on a change of condition. Ortiz v. Charles J. Murphy Company, 964 P.2d 595 (Colo.App. 1998); Thye v. Vermeer Sales Service, 662 P.2d 188 (Colo.App. 1983). Section 8-43-303(2)(a) provides a change of condition may support reopening the claim if the petition to reopen is filed within two years “after the last temporary or permanent disability benefits or dependent benefits excluding medical benefits become due or payable.”
The respondents moved to strike the claimant’s application for hearing on grounds the petition to reopen was barred by the statute of limitations. In support, the respondents asserted the January 18, 2000 Final Admission admitted liability for permanent partial, temporary partial, temporary total and future medical benefits and denied all benefits not specifically admitted. Therefore, citing Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. No. 2001), the respondents argued the issue of permanent total disability was closed by the claimant’s failure to timely object to the January 18 Final Admission. The respondents also argued the claimant’s November 6, 2001 petition to reopen was filed more than six years from the date of injury and more than two years after the last indemnity benefit was paid.
In his written objection to the respondents’ motion to strike, the claimant admitted the January 2000 Final Admission for permanent partial disability was “paid out on June 1, 1998.” The claimant also conceded the January 2000 Final Admission admitted for indemnity benefits that “had previously been paid.” However, the claimant asserted that as a matter of law the benefits admitted in the January 2000 Final Admission “were due and payable as of January 18, 2000.” Therefore, the claimant argued the November 2001 petition to reopen was timely filed within two years of the date indemnity benefits became “due and payable.”
Based upon the written arguments, the ALJ determined the petition to reopen was barred by the statute of limitations. Consequently, the ALJ entered an order dated January 7, 2002, which struck the claimant’s application for hearing and denied the claim for additional permanent partial disability benefits. The ALJ issued a Corrected Order on January 31, 2002, which denied the claimant’s request for permanent total disability benefits. The claimant timely appealed the Corrected Order.
On review the claimant renews his contention that the petition to reopen was filed within the two year statute of limitations provided by § 8-43-303(2)(a). In particular, the claimant contends the respondents owe interest and argues that interest is a “benefit.” Further, the claimant contends that the unpaid interest continues to accrue. Therefore, the claimant argues the November 2001 petition to reopen was filed within two years of the date “benefits” became due and owing. Relying on Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998), the claimant also contends the respondents’ January 2000 Final Admission did not relieve them of liability for temporary and permanent disability benefits listed in their 1995 final admission of liability.
The claimant’s arguments concerning the respondents’ liability for accrued interest, and further temporary and permanent partial disability benefits, were not raised in his written Objection to the Motion to Strike the Application for Hearing dated December 20, 2001. Consequently, the argument was waived and may not be asserted for the first time on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); A.B. Hirschfeld Press, Inc. v. City County of Denver, 779 P.2d 1356
(Colo.App. 1988).
The claimant also asserts on appeal that he timely filed an objection to the January 2000 Final Admission. However, the claimant did not raise that defense before the ALJ. Indeed, by filing the petition to reopen the claimant inherently conceded the claim was closed. Consequently, the argument was waived. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, supra.
Moreover, the undisputed facts support the conclusion the claim is barred by the statute of limitations. The claimant was injured July 21, 1994. It follows that the claimant’s petition to reopen was barred when not filed by July 21, 2000.
Further, the two-year statute of limitations provided by §8-43-303(2)(a) begins on the date the last “temporary or permanent” disability benefit was paid. The claimant’s December 20, 2001 Objection expressly conceded that all benefits listed in the admitted the January 2000 Final Admission, except future medical benefits, were previously paid out on June 1, 1998. Therefore, the record compels the conclusion the November 2001 petition to reopen was filed more than two years after the last indemnity benefit was paid.
Finally, we agree with the ALJ’s implicit determination that the indemnity benefits listed in the January 2000 Final Admission did not, as a matter of law become “due and payable” on January 18, 2000, even though they were paid in 1998. Consequently, the ALJ did not err in striking the claimant’s application for hearing.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated January 31, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _________November 7, 2002 ______________to the following parties:
Salvador Duran, 3103 Skyview Ave., Pueblo, CO 81008
M G Concrete, Inc., c/o Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903
Michelle DeAngelo, Sierra Insurance Group, 5575 DTC Pkwy., #335, Englewood, CO 80111
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado