W.C. Nos. 3-706-200, 3-883-264Industrial Claim Appeals Office.
September 14, 1998
FINAL ORDER
The respondents, Nurses PRN of Denver, Inc., and its insurer, the Colorado Compensation Insurance Authority, seek review of an order of Administrative Law Judge Wells (ALJ) which awarded permanent partial disability benefits in W.C. No. 3-883-264. We affirm.
The issue is whether the claimant timely filed an objection to the respondents’ Final Admission of Liability. The respondents contend that the objection, which was filed by mail, was not timely, and therefore, that the ALJ erred in awarding permanent partial disability benefits.
Section 8-43-203(2)(b), C.R.S. 1997, which governs this claim (amended in 1998 for injuries on or after August 5, 1998), concerns the requirements for filing of a notice of liability See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993) (statutory requirements for closing a claim are procedural, and therefore, except when specifically provided to the contrary, amendments to procedural law apply to pending claims). The statute requires that an insurer’s final admission of liability must be mailed to the claimant. Bowlen v. Munford, 921 P.2d 59
(Colo.App. 1996). The statute also provides that a final admission of liability shall include a statement notifying the claimant 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.”
W.C. No. 3-883-264 involves an admitted injury which occurred on May 19, 1987. The respondents filed a Final Admission of Liability on May 25, 1993. It is undisputed that sixty days from May 25 was Saturday, July 24, 1993, and that the time for objecting to the Final Admission was extended to Monday, July 26, 1993. See § 2-4-108(2), C.R.S. 1998. The claimant’s objection was mailed to the Division of Workers’ Compensation (Division) on July 26, 1993.
The claimant subsequently applied for a hearing on permanent disability. At the commencement of the hearing, the respondents asserted that the claimant’s objection to the final admission was untimely because it was not received within sixty days of the date of the final admission. Further, the respondents argued that the claim was barred from reopening under the six-year statute of limitations in § 8-43-303, C.R.S. 1998. Therefore, the respondents moved for an order dismissing the claim for permanent disability benefits.
The ALJ determined that where an objection to a final admission is filed by mail, it must be mailed within sixty days of the date of the final admission. In support, the ALJ noted that under § 8-43-301(2), C.R.S. 1998, a petition to review is timely filed if placed in the mail within twenty days of the date of the certificate of mailing of the ALJ’s order. Therefore, the ALJ determined that the claimant’s July 26 objection was timely filed when mailed, and he denied the motion to dismiss. (Tr. pp. 14, 15); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Furthermore, the ALJ determined the claimant sustained 5 percent permanent impairment as a result of the 1987 injury. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits accordingly.
On review, the respondents point out that, unlike §8-43-301(2), § 8-43-203(2)(b) does not expressly provide that an objection filed by mail is deemed filed on the date of mailing. Therefore, the respondents argue that § 8-43-301(2) is distinguishable, and the ALJ erred in finding that the claimant’s objection was timely filed. We disagree.
C.R.C.P. 5(b) states that where service is made by mail, it is complete on the date of mailing. See Powderhorn v. Weaver, 835 P.2d 616 (Colo.App. 1992) (state rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Workers’ Compensation Act). Section 8-43-203(2)(b) does not expressly state that the claimant’s objection must be received by the Division or the respondents within sixty days of the date of the final admission. Moreover, we are not persuaded that the absence of language in §8-43-203(2)(b) designating the date of mailing as the date of filing constitutes an inconsistency between the statute and C.R.C.P. 5(b).
We also note that Part VIII(F) of the Rules of Procedure, 7 Code Colo. Reg. 1101-3 at 24 (1995), provides that when a document is mailed in a workers’ compensation case, the date of “filing” is the date of mailing as stated in the certificate of mailing. Here, the certificate of mailing on the claimant’s objection states that the objection was mailed on July 26, 1993. Thus, the ALJ properly concluded that the objection was timely filed, and did not err in awarding permanent partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 10, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed September 14, 1998 to the following parties:
Dianna M. Riffee, 208 S. Van Buren, P.O. Box 665, Hugoton, KS 67951
Ginny Weed, Penrose Hospital, P.O. Box 7021, Colorado Springs, CO 80933
Nurses PRN of Denver, Inc., 801 N. Weber, Colorado Springs, CO 80903
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents Penrose Hospital and Self-Insured)
Shirley Va’i, Catholic Health Initiatives, Employee Injury Management, 1115 Elkton Dr., #400, Colorado Springs, CO 80907
BY: _______________________