W.C. No. 4-287-760Industrial Claim Appeals Office.
June 8, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a petition to reopen the claim for permanent total disability benefits. The claimant challenges the order insofar as the ALJ concluded that the claim was closed by the respondents’ final admission of liability. We affirm.
The claimant sustained a compensable back injury in February 1996. In February 1997, the respondents filed a final admission of liability in which the respondents admitted liability for various periods of temporary total disability, and permanent partial disability benefits in the amount of $31,654.
The front page of the final admission contains the statement that: “All benefits or penalties not admitted below are hereby specifically denied.” Beneath this statement an “x” was placed in the spaces next to Medical to Date, TTD, and “Working unit.” However, no “x” was placed next to the space designated for “Permanent Total Disability.” The “General Remarks” section of the admission contains a detailed explanation of the respondents’ calculation of the claimant’s entitlement to permanent partial disability benefits based on a 23 percent whole person medical impairment rating.
The claimant did not file an objection to the final admission of liability within 60 days as required by the applicable version of § 8-43-203(2)(b), C.R.S. 1997. See 1998 Colo. Sess. Laws, ch. 313 at 1431-1432 (reducing time for objection from 60 to 30 days and renumbering the statute). However, the claimant later sought to reopen, alleging mistake, error, and change of condition, and that she was permanently and totally disabled. The claimant also argued that the respondents’ final admission of liability was not sufficient to close the claim with respect to the issue of permanent total disability benefits.
The ALJ denied the petition to reopen based on error, mistake, or change of condition. The ALJ also concluded that the respondents’ final admission of liability “closed all issues, including permanent total disability benefits and the claimant was required to file” a petition to reopen in order to receive additional benefits.
On review, the claimant’s sole contention is the ALJ erred in determining that the final admission of liability closed the “issue” of permanent total disability benefits. The claimant argues that because the final admission did not “admit” liability for permanent total disability benefits within the meaning of §8-43-203(2)(b), the issue of permanent total disability benefits was never “closed” for purposes of § 8-43-203 (2)(d), C.R.S. 1999. We disagree.
The pertinent portion of § 8-43-203(2)(b) provides as follows:
An admission of liability for final payment of compensation shall include the statement that this is the final admission of the workers’ compensation insurance carrier in this case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission. When the final admission is predicated upon medical reports, such reports shall accompany the final admission.
Section 8-43-203(2)(d) provides that, “once the case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to section 8-43-303.”
In Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993), the court applied these statutes and held that a final admission of liability for temporary and permanent partial disability benefits did not foreclose the issue of penalties for failure timely to admit or deny liability because the admission was limited to temporary and permanent disability benefits. In so doing, the court stated that § 8-43-203(2) by “necessary implication” contemplates “continuing jurisdiction over any issue
not specifically addressed in a non-contested final admission of liability.” (Emphasis added).
We subsequently distinguished the Dalco Industries case i Tidwell v. Department of Corrections, W.C. No. 4-150-549
(November 25, 1994). In Tidwell, the respondents filed a final admission of liability for temporary total disability and permanent partial disability benefits. The final admission explicitly stated that “all benefits not admitted below are hereby specifically denied.” The admission listed disfigurement as a benefit, but did not indicate the respondents were admitting liability for disfigurement. The claimant failed to contest the final admission, but later sought an award of disfigurement benefits without filing a petition to reopen. However, we concluded the final admission of liability foreclosed the claim for disfigurement benefits absent a petition to reopen. Our reasoning was as follows:
Under § 8-43-203(2), a final admission of liability which is not contested within sixty days automatically closes the claim “as to the issues admitted in the final admission.” Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). We have previously held that the language “as to the issues admitted” does not mean only those “issues” concerning which the respondents have agreed to pay benefits. Instead, we have held that this language must be interpreted as referring to “issues” on which the respondents affirmatively take a position, either by agreeing to pay benefits, or by denying liability to pay benefits. The rationale for this holding is that § 8-43-203(2) is designed to permit the closure of claims by “final payment of compensation.” To preclude “final” closure of a claim, unless the respondents admit liability for every category of benefits, would defeat the legislative intent of the statute. (Emphasis in original).
The claimant argues that Tidwell was wrongly decided because the holding is contrary to the plain language of § 8-43-203(2). The claimant reasons that Tidwell impermissibly altered §8-43-203(2)(b) to mean that a case will be automatically closed “as to the issues admitted or denied in the final admission.” We are not persuaded by this argument.
The principal objective of statutory construction is to effect the legislative intent. The best indicator of a legislative intent is the statutory language itself. Therefore, words and phrases in the statute should be given their plain and ordinary meanings. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). However, if ambiguity exists, we may resort to rules of statutory construction. An ambiguity exists when the statutory language used is unclear or susceptible of more than one meaning See Weld County School District RE-12 v. Bymer, 955 P.2d 550
(Colo. 1998). To the extent there is an ambiguity, we should construe the statute in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Further, we should give due consideration to the object which the legislature sought to obtain by enactment of the statute. Weld County School District RE-12 v. Bymer, supra.
The claimant’s assertion notwithstanding, we consider the phrase “issues admitted,” as used in § 8-43-203(2)(b), to be ambiguous. First, it is not clear whether the term “issues admitted” refers to issues involving payment of admitted benefits, or merely issues specifically mentioned in a final admission. Indeed, the claimant’s proposed interpretation would alter the statute to read that a case will automatically be closed as t benefits admitted, not the issues admitted. A second source of ambiguity is the fact that many final admissions for payment of benefits necessarily imply a corresponding denial of additional or alternative liability for related benefits. For instance, when the respondents file a final admission of liability for a fixed period of temporary total disability benefits, they implicitly deny liability for temporary total disability benefits beyond the specified period. If the claimant’s interpretation of the statute is correct, the “issue” of the respondents’ liability fo additional periods of temporary disability benefits would not be closed because the respondents did not “admit” and pay benefits on that “issue.”
Similarly, in this case, the respondents admitted liability for permanent partial disability benefits. Because permanent partial disability benefits and permanent total disability benefits both compensate for a claimant’s permanent loss of earning capacity, the respondents’ admission for permanent partial disability benefits constituted an implicit denial of liability for permanent total disability benefits. See Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996). However, the claimant would have us distinguish between the “issue” of permanent partial disability benefits and the “issue” of permanent total disability benefits, and hold the issue of permanent total disability benefits remains open because the respondents did not specifically agree to pay benefits for permanent total disability benefits.
In our view, a better and more workable definition of an “admitted issue” is an issue specifically mentioned in the final admission, and concerning which the respondents have affirmatively taken a position, either by agreeing to pay benefits, or by denying liability to pay benefits. Tidwell v. Department of Corrections, supra. In this regard, we note that § 8- 43-203(2)(b) is part of an overall statutory scheme designed to “promote, encourage, and insure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy.”Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998). Our interpretation of § 8-43-203(2) (b) accomplishes this statutory objective by allowing the respondents to specify the benefits which they are willing to pay, while expressly denying liability for benefits which they believe the claimant is not entitled to receive. The claimant is then given the choice of disputing the respondents’ admission by seeking additional benefits, or allowing the case to be “closed” on the “issues” concerning which there is no legitimate dispute. Section 8-43-203(2)(d).
Moreover, § 8-43-203(2)(b) is directly concerned with “an admission of liability for final payment of compensation” and the closure of admitted issues. The obvious purpose of this statute is to create a procedural mechanism by which claims may be brought to a conclusion and afforded a degree of finality, except where reopening is appropriate. The claimant’s proposed interpretation of the statute runs contrary to this objective, and would serve to perpetuate claims even when no legitimate issue remains for consideration. The reopening provisions provide claimants and respondents sufficient procedural protection where justice would not be served by enforcing principles of finality.
Our interpretation of the statute is fully consistent wit Dalco Industries v. Garcia, supra. Dalco does not state that admissions may close only those issues on which the respondents agree to pay benefits. Rather, the case holds that § 8-43-203(2) provides for continuing jurisdiction over issues “not specifically addressed” in a non-contested final admission.
It follows that the ALJ properly determined the issue of permanent total disability was closed by the respondents’ February 1997 final admission of liability. The final admission specifically listed permanent total disability as a potential benefit, and stated that if the respondents did not admit for a benefit, the benefit was denied. The admission contains no indication whatsoever that the respondents were admitting liability for permanent total disability benefits, but instead were admitting for permanent partial disability benefits. Further, the “Notice to Claimant” found on the second page of the admission warned the claimant that she must object to the final admission if she objected to the “amount or type of benefits” which the respondents “agreed to pay.” (Emphasis added). Therefore, the final admission specifically addressed the issue of permanent total disability benefits, denied the benefit, and closed the issue. Tidwell v. Department of Corrections, supra.
Although the claimant’s brief asserts that the admission did not afford her adequate notice that the issue of permanent total disability was closed by the admission, the record does not support this assertion. In fact, the claimant did not testify that the admission was confusing, or that she failed to object because she was not informed of her rights. Instead, she stated that she failed to object because she expected she would return to work. (Tr. pp. 17-18).
Similarly, we are unpersuaded by the claimant’s assertion that because she was pro se when the final admission was issued, her failure to object is excused. A pro se litigant is presumed to have knowledge of the applicable statutes, and must be prepared to accept the consequences of her own mistakes if she elects not to retain counsel. Manka v. Martin, 200 Colo. 260, 614 P.2d 875
(Colo. 1980). Although the claimant argues that she was not a “litigant” when the admission was issued, we find this argument to be without merit. Indeed, § 8-43-203(2)(b) was specifically designed to afford claimants, including pro se claimants, notice that the final admission would close their claims. The claimant was afforded ample notice, and her failure to act does not constitute a legal excuse for failure to object.
The claimant’s remaining arguments lack merit. Insofar as the claimant asserts there is an equal protection issue involving the reopening provisions, we are without jurisdiction to consider the issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 1999. 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 June 8, 2000
to the following parties:
Donna Dyrkopp, 3238 E. 105th Pl., Northglenn, CO 80233
Doreen Bovey, Denver School District No. 1, 900 Grant St., Denver, CO 80203
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail David Lichtenstein, Esq., 303 E. 17th Ave., #1070, Denver, CO 80203 (For Claimant)
Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy