W.C. No. 4-427-814Industrial Claim Appeals Office.
February 28, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the issues of permanent disability and disfigurement were closed by the claimant’s failure to file an application for hearing on these issues. We affirm.
The facts are undisputed. The claimant sustained a compensable injury on July 10, 1999. On February 20, 2002, the respondents filed a Final Admission of Liability (FAL). The FAL admitted for disfigurement benefits, permanent partial disability benefits based on a 14 percent whole person impairment, and ongoing medical benefits after maximum medical improvement.
On March 22, 2002, the claimant filed an objection to the FAL. On the same date the claimant filed an application for hearing. The application did not list any specific issues for determination. Rather, the application contains the statement that the claimant “maintains that, at this time, no issues are disputed and ripe and that all issues remain open.” The respondents filed a response stating the claim was closed and no issues remained.
The matter went to hearing before the ALJ. No testimony was taken, but the parties stipulated there were no issues which were “disputed or ripe.” Claimant’s counsel explained that this meant he couldn’t put on any evidence at the hearing which would raise any factual dispute concerning the issues admitted in the FAL. (Tr. P. 11).
Under these circumstances, the ALJ concluded the issues of permanent disability and disfigurement were closed because the claimant failed to request a hearing on these issues within thirty days of the FAL, as required by § 8-43-203(2)(b)(II), C.R.S. 2002. The ALJ reasoned the purpose of the statute is to promote prompt closure of issues over which there is no legitimate controversy, and the claimant admitted through the stipulation that there was no legitimate dispute on the issues of disfigurement and permanent disability, at least at the time the FAL was filed.
On review, the claimant contends the “plain language” of the statute establishes there was no requirement to file an application for hearing because there was not yet any “dispute” at the time the objection to the FAL was filed. The claimant reasons the filing of the objection precluded closure of any issues. Thereafter, the claimant argues the duty to file an application for hearing was “contingent” on the claimant’s decision to “dispute” an issue which was otherwise ripe for hearing. Indeed, the claimant argues there is really no difference between the “ripeness of an issue and a disputed issue.” The claimant asserts that if an issue is “ripe” it must be “ready for adjudication both legally and factually.” (Claimant’s Brief at P. 7). We disagree with the claimant’s interpretation of the statute.
The pertinent portion of § 8-43-203(2)(b)(II) provides that a 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.” Section 8-43-203(2)(d), C.R.S. 2002, provides that if a “case is closed pursuant to this subsection (2), the issues closed may only be reopened pursuant to section 8-43-303.”
The claimant asserts the plain meaning of the statutory term “disputed issues” connotes a discretionary decision by the claimant to request a hearing to challenge an “issue” admitted in the FAL. Thus, in the claimant’s view, an issue is “disputed” at any point in time when the claimant decides to dispute it. In contrast, the respondents argue the term “disputed issues” refers to issues admitted in the FAL concerning which the claimant can present a “legitimate controversy” within 30 days of the filing of the FAL. If the claimant does not request a hearing on such an issue, the respondents argue the issue is closed. The distinction is of great importance in this case because the claimant conceded at the hearing there was no legitimate basis for challenging any issue admitted in the respondents’ FAL within 30 days of the date the admission was filed. In our view, the term “disputed issues” is ambiguous because it could admit of either definition. Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo.App. 1999) (statute is ambiguous if it is fairly susceptible to more than one interpretation).
Because the term “disputed issues” is ambiguous, we may apply rules of statutory construction designed to assist in clarifying ambiguous language. Miller v. Industrial claim Appeals Office, supra. The primary objective of statutory construction is to effect the legislative intent. Where a statute is ambiguous, we may consider the state of the law prior to the legislative enactment, and the statutory remedy created to solve the problem. Further, we should construe the statutory scheme in a manner which gives “consistent, harmonious, and sensible effect to all of its parts.” Henderson v. RSI, Inc., 824 P.2d 91, 94 (Colo.App. 1991). Further, we may consider the consequences of alternative constructions Miller v. Industrial Claim Appeals Office, supra.
The courts have held that § 8-43-203(2)(b)(II) is part of a “statutory scheme designed to promote, encourage, and ensure the prompt payment of compensation without the necessity of a formal administrative determination in cases not presenting a legitimate controversy.” Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821, 822 (Colo.App. 2001). Further, as we recently noted in Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002), the requirement to request a hearing on disputed issues ripe for hearing was added to the statute in 1998. 1998 Colo. Sess. Laws, ch. 313 at 1431. The Chavez decision contains the following discussion of the problem the 1998 legislation was designed to correct.
The statutory language was adopted in 1998 as part of a comprehensive bill which established procedures and time limitations for the selection of a Division-independent medical examination (DIME) physicians [sic] when a DIME is required to resolve disputes under the Act. 1998 Colo. Sess. Laws, ch. 313 at 1427-1432. Prior to the enactment of this legislation a claimant could file a timely objection to an FAL and the claim might remain open in perpetuity if the claimant did not seek a DIME or apply for a hearing. One obvious purpose of the 1998 legislation was to encourage the prompt adjudication of issues requiring DIME by establishing time limits for requesting a DIME. The simultaneous enactment of the requirement that the claimant request a hearing on issues “ripe for a hearing” indicates the General Assembly wished to encourage prompt adjudication of disputed issues “admitted” in the FAL, and to close claims where no dispute exists. [citation omitted].
The issue in the Chavez case was the meaning of the term “ripe for hearing.” Based on the foregoing discussion of the 1998 enactment, we rejected the claimant’s argument that the issue of average weekly wage, which was addressed in the FAL, was not “ripe” until the claimant discovered evidence, some five months after the FAL, that the admitted wage was incorrect. We held the term “ripe for hearing” refers to an issue concerning which there is no legal impediment to adjudication. We further stated “it would be inconsistent with the statutory objective of closing claims where there is no legitimate controversy if the claimant could dictate `ripeness’ by failing to investigate or conduct discovery on evidentiary matters underlying issues addressed in the FAL.”
Applying these principles here, we conclude the respondents’ interpretation of the term “disputed issues” is more consistent with the legislative intent than is the claimant’s. If the legislative purpose is to close issues admitted in the FAL concerning which there is no legitimate controversy, it would make little sense to permit the claimant to decide when an issue is subject to dispute. Indeed, such an interpretation would reinstate the law as it existed before the 1998 amendments because the claimant could file a general objection to the FAL, and the claim would remain open until such time as the claimant decided to “dispute” particular issues by requesting a hearing. Conversely, the respondents’ interpretation serves the legislative objective by closing issues concerning which the claimant can offer no legitimate controversy when the FAL is filed.
Moreover, the respondents’ interpretation lends a consistent and harmonious interpretation to the entire statute. The claimant suggests that the terms “disputed issues” and “ripe of hearing” are essentially redundant because the claimant’s decision to dispute an issue also renders the issue ripe. However, in our view, these statutory terms serve different functions. The mandate to request a hearing on “disputed issues” within 30 days of the FAL requires the claimant to determine which of the admitted issues is subject to disagreement and consequent litigation. The term “ripe for hearing” recognizes that in some cases the procedural requirements of the statute or the legal posture of the case prevents litigation of an issue until some subsequent event. Hence, if an issue is not legally ripe for a hearing, the claimant is not required to request a hearing even if the claimant “disputes” the issue admitted in the FAL. Cf. Eddy v. Toby’s Vacuum Truck Service, W.C. No. 3-113-338 (October 5, 2001) (failure to request a hearing on Grover
medical benefits within 30 days of the FAL did not foreclose claimant from obtaining such benefits because respondents admitted for Grover
medicals, and the issue of specific Grover medical benefits is not “ripe” until the respondents refuse to pay for particular treatments).
Applying these principles here, we conclude the ALJ correctly ruled the issues of disfigurement and permanent partial disability are closed, subject only to the reopening provisions of the Act. The claimant admitted that he could not offer any evidence which would present a legitimate controversy concerning the issues of disfigurement and permanent medical impairment. Because the claimant could present no legitimate controversy concerning these issues, he was unable to prevent closure of the issues by requesting a hearing within 30 days of the FAL as required by § 8-43-203(2)(b)(II).
The claimant argues that our interpretation of the statute is unjust because it imposes an unfair burden on claimants to seek reopening of claims. The claimant posits a situation in which an injured worker returns to employment and is dismissed after closure of the claim because of injury-related restrictions. The claimant argues the hypothetical worker could not seek reopening absent the ability to prove a worsening of condition. However, it is for the General Assembly, not the Industrial Claim Appeals Office, to strike a “fair” balance between finality of claims and circumstances which permit reopening of an award for additional benefits. Davison v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0922, January 2, 2003) (court may not substitute its own policy determinations for those of the General Assembly).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced 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 thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe Street, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed ______February 28, 2003_______ to the following parties:
Kimahli S. Peregoy, 8905 Field St., Apt. 87, Westminster, CO 80021
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandy Parrott, Liberty Mutual Insurance Co., P.O. Box 168208, Irving, TX 75016-8208
Jeff Francis, Esq., 940 Wadsworth Blvd., #400, Lakewood, CO 80214 (For Claimant)
John M. Connell, Esq., and Susan A. Kraemer, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)
By: ________A. Hurtado______________