W.C. No. 4-409-905Industrial Claim Appeals Office.
December 29, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded disfigurement benefits and permanent partial disability benefits based on 13 percent whole person medical impairment. We affirm the disfigurement award and set aside the award of medical impairment benefits.
On November 20, 1998, the claimant suffered an admitted shoulder injury. Dr. Yamamoto placed the claimant at maximum medical improvement on December 1, 1999, with 21 percent upper extremity impairment. Dr. Yamamoto converted the rating to 13 percent whole person impairment using the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised. Relying on Dr. Yamamoto’s opinions, the respondents filed a Final Admission of Liability dated December 10, 1999, which admitted liability for medical benefits, temporary disability benefits, disfigurement benefits of $600 and scheduled disability benefits based upon 21 percent impairment of the upper extremity.
The claimant filed an application for hearing which requested additional benefits. The application contains a certificate of mailing dated January 10, 2000. A hearing was scheduled for May 10, 2000.
At hearing the respondents argued the claim automatically closed by operation of § 8-43-203(2)(b)(II), C.R.S. 2000, following the claimant’s failure timely to “object” to the Final Admission. The ALJ rejected this argument and found the claimant’s Application for Hearing was a timely objection to the final admission. The ALJ also found the claimant suffered functional impairment not listed on the schedule of disabilities. Therefore, the ALJ awarded permanent partial disability benefits based upon Dr. Yamamoto’s whole person impairment rating. The ALJ also ordered the respondents to pay disfigurement benefits of $1000. The respondents timely appealed.
I.
On review the respondents renew their contention the claim is closed. Accordingly, the respondents contend the ALJ erred in awarding additional benefits in the absence of a petition to reopen. We perceive no error.
The rules of statutory construction require that we construe statutes to give effect to the intent of the General Assembly Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA0963, March 2, 2000). In discerning the legislative intent, we must first examine the actual language of the statute. Words and phrases are to be given their plain and ordinary meanings unless the result is absurd. Sullivan v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA2203, October 12, 2000). Furthermore, we must read the statute in relation to other provisions and attempt to give all provisions a consistent, harmonious and sensible effect. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra. In so doing, the General Assembly is presumed to have intended a just and reasonable result. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Section 8-43-203(2)(b)(II) [enacted 1998 Colo. Sess. Laws, ch 313, at 1431 and applicable to injuries which occur on or after August 5, 1998] provides that a final admission of liability shall include a notice to the claimant that he may contest the admission if he feels he is entitled to more compensation and that the:
“case will be automatically closed as to the issues admitted in the final admission if the claimant does not within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.”
Under the predecessor statute the claimant had 60 days in which he could object to a final admission and there was no requirement to request a hearing within 30 days of the date of the final admission. See former § 8-43-203(2)(b), C.R.S. 1997. When a statute is amended it is presumed the General Assembly intended to change the law. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Accordingly, we conclude the legislature amended § 8-43-203(2)(b) to promote the prompt closure of claims by reducing the time period for objecting to a final admission and requiring that all issues ripe for adjudication be scheduled for hearing. However, we reject the respondents’ contention that § 8-43-203(2)(b)(II) required the claimant to file 2 separate pleadings. The statute only requires the filing of an application for hearing where the disputed issues are “ripe” for adjudication. Therefore, the statute contemplates circumstances where the claimant will contest the final admission but no application is required. Thus, not every objection to a final admission will be accompanied by a second pleading which requests a hearing.
Furthermore, we perceive no basis to disturb the ALJ’s determination that the claimant’s application for hearing is sufficient to satisfy the claimant’s statutory obligation to “contest the final admission in writing.” The apparent purpose of requiring a claimant to object to a final admission within thirty days is to notify the respondents that the claimant does not accept the respondents’ “final” position concerning the claimant’s entitlement to additional benefits, and to alert the respondents that there is an ongoing controversy which is not subject to resolution by administrative closure. Cf. Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984) (purposes of requiring respondents to admit or deny liability are to alert the claimant that he is involved in a “situation with legal ramifications” and assist the Division in executing its administrative functions).
The predecessor statute did not prescribe a particular form for contesting the final admission and we have declined to elevate form over substance. Therefore, we have previously concluded that any pleading which adequately notifies the respondents the claimant does not accept the final admission constitutes substantial compliance with the obligation to contest the final admission in writing. See Blum v. Poudre Valley Hospital, W.C. No. 4-334-414 et. al. (November 21, 2000); cf. Martin v. Industrial Commission, 608 P.2d 366 (Colo.App. 1980) (for a document to be a sufficient notice of claim the document must indicate the names of the parties, indicate that a compensable injury has occurred and convey the idea that the claimant expects compensation for the injury). In Lee v. Arapahoe County, W.C. No. 4-215-262 (August 9, 1995), we held that an application for hearing may fulfill the statutory requirement to “contest the final admission in writing.”
Admittedly, Lee was decided under the predecessor statute. However, § 8-43-203(2)(b)(II) is identical to the predecessor statute insofar as the statute requires the claimant to “contest the final admission in writing.” Furthermore, the 1998 amendments do not prescribe a particular method for contesting the admission. The legislature merely limited the amount of time in which the claimant could “contest” the final admission. Where, the General Assembly does not amend statute it must be presumed that General Assembly has endorsed our interpretation of statute. See Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994). Consequently, we reject the respondents’ contention the 1998 amendments intended to overrule our conclusion that a timely filed application for hearing may satisfy the claimant’s duty to “contest” the final admission.
Here, the claimant’s January 10, 2000 application for hearing requested additional indemnity, medical and disfigurement benefits. Accordingly, the application necessarily notified the respondents that the claimant believed he was entitled to more compensation than provided by the final admission. Under these circumstances we conclude the application substantially complied with the statutory requirement to contest the final admission in writing.
We also agree with the ALJ’s determination that the claimant timely contested the final admission. There is no statute or rule concerning the process for filing an objection to a final admission. However, the Rules of Procedure, Part VIII 7 Code Colo. Reg. 1101-at 21 governs “Workers’ Compensation Hearings.” Rule VIII(A) provides the procedure to “request” a formal hearing before an ALJ. Rule VIII(F) states that:
“The date of filing for purposes of this rule shall mean the date stamped on the document by the Division of Administrative Hearings or Division when the document is delivered, or the date on the certificate of mailing when the document is mailed.” (Emphasis added).
The interpretation of procedural rules is subject to the usual rules of statutory construction, and the rule must be construed to give the legislative intent of the statute it is designed to administer. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997); Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995). When a legislature has amended a statute, a failure to repeal the agency’s interpretation is persuasive evidence that the administrative interpretation was intended by the legislature. Hewlitt-Packard Company v. State of Colorado, 749 P.2d 400 (Colo. 1988).
Rule VIII(F) existed in identical form prior to enactment of § 8-43-203(2)(b)(II). See 7 Code Colo. Reg. 1101-3 at 25 (1994). We must assume the General Assembly was cognizant of the rules enacted by the Director of the Division of Workers’ Compensation when it created § 8-43-203(2)(b)(II). See Hewlitt-Packard Company v. State of Colorado, supra.. Because the legislature did not explicitly provide another procedural process to request a hearing for purposes of § 8-43-203(2)(b)(II), the legislature implicitly endorsed the rule enacted by the Director to request a hearing.
The final admission is dated December 10, 1999. Therefore, the claimant was required to file an application for hearing on all issues ripe for adjudication no later than January 9, 2000. However, January 9 was a Sunday, and therefore, the claimant’s objection was timely if filed by January 10, 2000. Section 2-4-108(2), C.R.S. 2000.
The certificate of mailing on the claimant’s Application for Hearing states that it was mailed to the Division on January 10, 2000. Under Rule VIII(F) it was therefore timely.
Moreover, because the application for hearing constitutes a sufficient objection to the final admission, the record supports the ALJ’s finding that the claimant timely objected to the final admission.
In reaching our conclusions, we are mindful that the date a party “requests” specific findings of fact under former § 8-43-215
[amended 2000 Colo. Sess. Laws, ch. 138 effective for claims filed or pending on or after April 28, 2000] is not the date the request is mailed. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra. Rather, the Wal-Mart court held that a “request” for specific findings is filed on the date it is received by the Division of Administrative Hearings. However, the court noted that Rule VIII(A), 7 Code Colo. Reg. 1101-3 at 18, expressly refers back to § 8-43-215 as governing the procedure for requesting specific findings of fact. Under these circumstances, the court held that the rules of procedure were not dispositive of the date for filing a “request” for specific findings. Because Rule VIII(F) expressly governs the procedure for filing an application for hearing, the circumstances presented here are legally distinguishable from the issue in Wal-Mart.
II.
Nevertheless, the respondents contend the ALJ exceeded her authority in awarding permanent partial disability benefits for whole person impairment because that issue was not endorsed for hearing. We agree.
We conclude the facts and circumstances of this claim are similar to those in Reese v. Cripple Creek Mountain Estates Country Club, (Colo.App. No. 91CA0291, November 29, 1991) (not selected for publication). Following the Court’s decision in that case, we conclude the issue of permanent partial disability benefits was not properly before the ALJ for adjudication at the hearing on May 10, 2000.
In Reese, the Court stated that, simply because a party checks an issue on an application for hearing or response to application for hearing, does not mean the party is required to pursue the issue at hearing. The party may choose to forego an issue or may ask for a future determination of the issue. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Therefore, in Reese v. Cripple Creek Mountain Estates Country Club, supra, the court held the statute of limitations defense was waived where it was endorsed in the response to application for hearing but not endorsed at the beginning of the hearing.
Here, the claimant checked the following issues for determination on his January 10 application for hearing: medical benefits, temporary disability benefits, permanent partial disability, permanent total disability, disfigurement, penalties and death benefits. A hearing was scheduled for May 10, 2000. On May 8, 2000 the claimant filed a “Motion to Withdraw Issues of Medical Benefits, Temporary Disability Benefits, Permanent Total Disability, Penalties and Death Benefits.” The record contains a written order dated June 15, 2000, which granted the claimant’s motion.
At the commencement of the hearing, and prior to taking any testimony the ALJ requested clarification of the issues for adjudication. The claimant’s attorney stated the claimant only wanted to “go forward” on the issue of disfigurement benefits. (Tr. p. 3). The respondents did not object. (Tr. p. 4). Under these circumstances, the record compels the conclusion the claimant withdrew the issue of permanent partial disability from the May 10 hearing. Therefore, the ALJ erred in adjudicating the issue of permanent disability and the award of whole person impairment benefits must be set aside.
We recognize that the respondents added the issue of overcoming a Division- sponsored independent medical examination (DIME) physician’s medical impairment rating. There was no DIME. In fact, the ALJ found the claimant failed timely to request a DIME to dispute Dr. Yamamoto’s rating. Consequently, we are not persuaded either the claimant or the respondents expressly raised the question of whether the claimant is limited to a scheduled disability award.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 2000, is set aside insofar as the ALJ awarded whole person medical impairment benefits and, in all other respects the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2000. 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 December 29, 2000 to the following parties:
McArthur Mitchell, 1300 Fillmore St., #4, Denver, CO 80206
Office Liquidators, Inc., 5250 E. Evans Ave., Denver, CO 80222-5222
Curt Kriksciun, Esq., CCIA d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
John M. Connell, Esq. and Scott D. Sweeney, Esq., 1675 Larimer St., #710, Denver, CO 80202 (For Claimant)
Douglas Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: L. Epperson