W.C. No. 4-525-960.Industrial Claim Appeals Office.
July 19, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ Friend) which determined the claim was closed because the claimant did not timely file an application for hearing to contest a final admission of liability (FAL). We set the order aside and remand for further proceedings.
The claimant sustained a compensable injury in February 2001. The claimant reached maximum medical improvement (MMI) on June 4, 2002, and a Division-sponsored independent medical examination (DIME) was requested. On November 27, 2002, the respondents filed an FAL admitting temporary partial disability (TPD) benefits from November 30, 2001 to May 2, 2002, and permanent partial disability (PPD) benefits commencing June 4, 2002, based on the DIME physician’s impairment rating. The FAL also admitted an average weekly wage (AWW) of $310.24, and denied ongoing medical benefits after MMI (Grover medicals).
On December 17, 2002, the claimant objected to the FAL and filed an application for hearing listing the issues as Grover medicals, AWW, and permanent total disability (PTD) benefits. Apparently, the matter was set for hearing on April 11, 2003.
However, on January 16, 2003, the hearing was canceled at the claimant’s request and without objection by the respondents. The basis of the request for cancellation was apparently the claimant’s belief that the issue of PTD benefits was not “ripe” for hearing. There was no stipulation that cancellation of the hearing would not “result in a waiver of any issues.” See Rule of Procedure VIII (K), 7 Code Colo. Reg. 1101-3 at 31.
Nothing further transpired until August 14, 2003, when the respondents filed a Petition to Close the claim, arguing that the claimant had failed to prosecute the claim after “withdrawing” the December application for hearing. On August 28, 2003, the Director of the Division of Workers’ Compensation (Director) issued an Order to Show Cause why the claim should not be dismissed for failure to prosecute. The claimant responded stating that she previously filed a timely application for hearing and was seeking an increase in the AWW, which would entitle her to additional TPD and PPD benefits. On September 25, 2003, the claimant filed a second application for hearing listing the issues as AWW, TPD, and PPD. Apparently the Order to Show Cause was then discharged.
The respondents filed a written motion to strike the September 2003 application for hearing arguing that it was not filed within 30 days of the November 27 FAL as required by § 8-43-203 (2) (b) (II), C.R.S. 2003. The claimant filed a written response contending that the December 2002 application for hearing satisfied the statutory requirement to file an application for hearing within thirty days of the FAL and that the subsequent “withdrawal” of the application did not close the claim or mandate that another application be filed within thirty days. The claimant further argued that by filing the Petition to Close the respondents conceded the claim had not been closed. ALJ Henk denied the motion to strike without comment on October 22, 2003.
However, on January 13, 2004, the respondents renewed the motion to strike at the hearing before ALJ Friend. ALJ Friend granted the motion in a written order dated January 14, 2004. ALJ Friend found that the September 2003 application was filed more than thirty days after the November 2002 FAL, and more than thirty days after the originally scheduled hearing was canceled in January 2003. Therefore, relying on §8-43-203 (2) (b) (II), the ALJ concluded the claim was closed. ALJ Friend further ruled that the respondents’ filing of the Petition to Close did not constitute an admission that the claim remained open.
The claimant filed a timely petition to review alleging that “denial of the claimant’s ability to proceed to hearing” is not supported by applicable law and is a denial of due process. The claimant did not file a brief in support of the petition. However, the legal basis of the claimant’s assertion that he was improperly denied a hearing is clear from the written response to the motion to strike the application for hearing, and the remarks of claimant’s counsel at the hearing. (Tr. P. 5). For these reasons, we address the substance of the claimant’s arguments and reject the respondents’ contention that the claimant waived consideration of these issues. See City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998).
We disagree with the ALJ’s conclusion that the claim was closed pursuant to the provisions of § 8-43-203 (2) (b) (II). The statute states that if party does not timely contest an FAL the “case will be automatically closed as to the issues admitted” in the FAL. The pertinent portion of the statute, as it existed when the November 2002 FAL was filed, provides as follows:
However, if an independent medical examination is requested pursuant to section 8-42-107.2, the request for hearing on disputed issues ripe for hearing need not be filed until after the completion of the division’s independent medical examination. The respondents shall have thirty days after the date of mailing of the report from the division’s independent medical examiner to file a revised final admission or to file an application for hearing. The claimant shall have thirty days after the date respondents file the revised final admission or application for hearing to file an application or response for hearing on any issues that are ripe for hearing. The revised final admission shall contain the statement required by this subparagraph (II) and the provision relating to contesting the revised final admission shall apply. (Emphasis added).
If the claimant does not contest a “revised final admission” in accordance with this provision, the claim is closed as to the issues admitted in the FAL, and the issues closed may not be reopened except as provided in § 8-43-303, C.R.S. 2003. Section 8-43-203 (2) (d), C.R.S. 2003; Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
We agree with the claimant that by filing the December 2002 application for hearing he complied with the statutory requirement to file an application for hearing on issues ripe for hearing within thirty days of the FAL. The ALJ’s conclusion and the respondents’ argument notwithstanding, nothing in the statute states that once the claimant satisfies the requirement to file an application for hearing on a disputed issue ripe for hearing that “withdrawal” of the application and consequent “cancellation” of the scheduled hearing vitiates the effectiveness of the timely filed application for purposes of satisfying the jurisdictional requirements of § 8-43-203 (2) (b) (II). See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (provisions of § 8-43-203 (2) (b) (II) create jurisdictional barrier to consideration of issues which have been closed by failure timely to contest FAL).
The case of Del Ramirez v. Conagra Beef Co., W.C. No. 4-478-614 (April 12, 2004), is illustrative. In Del Ramirez the respondents filed an FAL on November 30, 2001, but did not admit for PPD benefits because the DIME physician issued a zero impairment rating. The claimant filed an application for hearing within thirty days of the FAL on the issue of overcoming the DIME physician’s rating. However, the claimant failed t set the hearing within the time allotted by the applicable rule of procedure. The respondents then moved to dismiss the application for hearing arguing it was not timely filed within the meaning of § 8-43-203
(2) (b) (II), and the claim was closed.
However, in Del Ramirez we affirmed the ALJ’s ruling that failure to set the hearing within the time established by the applicable rule procedure did not nullify the effectiveness of the application with respect to preventing closure of the claim under the jurisdictional provisions of § 8-43-203 (2) (b) (II). We reasoned that because the statute only requires filing of the application for hearing within thirty days of the FAL, failure to set the hearing in accordance with a rule of procedure did not amount to a jurisdictional defect. We also observed that § 8-43-203 (2) (b) (II) does not establish a time limit for setting a hearing to contest an FAL and declined to read such a nonexistent provision into the jurisdictional requirements of the statute. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo.App. 1985) (statute is product of legislative action and court should not read nonexistent provisions into the Act). Finally, we rejected the argument that our interpretation would allow the claimant to delay termination of the litigation, noting the respondents could have set the issue for hearing themselves or moved to dismiss for lack of prosecution.
Applying the Del Ramirez principles here, we conclude the claim was not closed. The claimant met the statutory requirement to prevent closure by filing an application for hearing on issues ripe for hearing on December 17, 2002. The parties later agreed to “cancellation” the subsequently scheduled hearing pursuant to Rule VIII (K). However, nothing in that rule suggests that by agreeing to cancel a hearing a party is admitting that an otherwise timely application for hearing will be treated as if it was never filed for purposes of § 8-43-203 (2) (b) (II). Rule VIII (K) merely states that after cancellation of a hearing another hearing may be set by filing a “new application for hearing.” More importantly, nothing in § 8-43-203 (2) (b) (II) indicates that once a hearing has been timely requested the scheduled hearing may not be canceled and the application “withdrawn” without running afoul of the time limits established by the statute. Rather, “withdrawal” of an application and cancellation of a hearing are procedural matters and such procedural steps may occur for many reasons. Thus, we reject the respondents’ position that the claimant’s “voluntary withdrawal of the Application for Hearing and cancellation of the April 11, 2003 hearing had the effect of returning her case to the status quo ante.” (Respondents’ Brief at 9).
Moreover, the Rule VIII (K) does not state that withdrawal of an application for hearing and consequent cancellation of a scheduled hearin shall be treated as a “waiver” of the right to litigate any issues raised in the application. It merely provides that the parties may “stipulate” that if a hearing is canceled the issues will not be considered waived in the event of future litigation.
Neither do we agree that this ruling negates the statutory purpose underlying § 8-43-203 (2) (b) (II). The purpose of the statute is to permit closure of claims without administrative litigation in cases where the claimant can present no legitimate controversy within thirty days of the FAL. See Peregoy v. Industrial Claim Appeals Office, supra. However, the statute was enacted as an exception to the general rule that in workers’ compensation matters the interest of obtaining a just result prevails over the interest of finality, and the statute should be construed with that understanding. Dalco Industries, Inc. v. Garcia, supra.
Here, the claimant apparently took the position that the issue of PTD was not “ripe” and asked that the scheduled hearing be canceled. Whatever the merits of the claimant’s position on the ripeness of PTD, the record does not indicate the claimant ever contended the AWW wage issue was not disputed and ripe, or that the claimant intended to “withdraw” the issue of AWW insofar as it relates to TPD and possibly PPD benefits. Thus, we do not agree that the request to “withdraw” the application and cancel the hearing demonstrates the claimant could not present a legitimate dispute concerning at least the AWW issue.
Moreover, we disagree with the assertion that this ruling permits the claimant to circumvent the intent of § 8-43-203 (2) (b) (II) by the simple expedient of filing an application for hearing and then withdrawing the application and canceling the hearing. First, Rule VIII (K) provides that cancellation must be agreed to by the parties. Thus, if the respondents do not agree to cancellation the claimant will be required to proceed to hearing and either present a valid dispute concerning some aspect of the FAL or admit that no issue is subject to dispute and the case must be closed, as was the case in Peregoy v. Industrial Claim Appeals Office, supra. Alternatively, Rule VIII (K) indicates that if the respondents do not agree to cancel a hearing the claimant must file a written motion justifying the request to cancel, or make an oral motion for continuance. In either case, the request for cancellation is subject to judicial scrutiny and it is doubtful the claimant would receive a continuance on demand Indeed, requests for continuances are subject to the good cause standard. Section 8-43-207 (1) (j), C.R.S. 2003; Rule of Procedure VIII (C) (2).
Finally, we reject the respondents’ argument that the issues of TPD and PPD were closed because they were not specifically mentioned in the December 2002 application for hearing. The claimant did raise the issue of AWW, which directly affects the amount of TPD and PPD benefits to which the claimant is entitled. See § 8-42-106 (1), C.R.S. 2003; § 8-42-107
(8) (d), C.R.S. 2003. Thus, at least to this extent, the issues of TPD and PPD remain open and were preserved by the December application.
IT IS THEREFORE ORDERED that ALJ Friend’s order dated January 14, 2004, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________ David Cain
______________________ Robert M. Socolofsky
Lourdes Gerchman, Fort Collins, CO, Wal-Mart Stores, Inc., Fort Collins, CO, American Home Assurance, c/o Cindy Hodges, CMI, Bentonville, AR, J.J. Fraser, III, Esq., Denver, CO, (For Claimant).
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).