W.C. No. 4-250-049Industrial Claim Appeals Office.
August 19, 1999.
FINAL ORDER
The Colorado Compensation Insurance Authority (CCIA), and its insured, T.H. Inc., d/b/a Hoshi Motors (collectively the CCIA respondents), seek review of an order of Administrative Law Judge Friend (ALJ). The CCIA respondents contend the ALJ erred in failing to order Mid-Century Insurance Company (Mid-Century) to pay the claimant’s workers’ compensation benefits. We affirm.
On appeal, the essential facts are undisputed. The claimant was employed as an auto mechanic for Hoshi Motors when he suffered a compensable occupational disease. The CCIA admitted liability for temporary disability and medical benefits. The claimant suffered a substantial and permanent aggravation of his condition after November 19, 1994, when Mid-Century became the insurer on the risk. On March 29, 1995, Mid-Century filed a general admission of liability which admitted liability for medical treatment of the injury after November 20, 1994.
The CCIA filed general admissions of liability for temporary disability benefits in 1996 and 1997. On December 18, 1997, the CCIA filed an uncontested Final Admission of Liability for permanent partial disability and future medical benefits.
On April 1, 1998, the CCIA filed an application for hearing and requested to withdraw its Final Admission of Liability. The CCIA contends the Final Admission was improvidently filed because Mid-Century is liable for the claimant’s temporary and permanent disability benefits under the last injurious exposure rule. The CCIA also sought an order allowing them to recover previously paid benefits from Mid-Century.
The ALJ determined that the claimant suffered a substantial permanent aggravation after November 19, 1994, and that the CCIA “knew or should have known” that it was not the insurer on the risk after that date. Relying on Safeway, Inc. v. Industrial Claim Appeals Office, 968 P.2d 162 (Colo.App. 1998), the ALJ further determined that the CCIA’s Final Admission was an admission that the CCIA is solely liable for the claimant’s workers’ compensation benefits. Therefore, the ALJ concluded that the CCIA waived its right to recover previously paid benefits from Mid-Century.
On review, the CCIA contends, inter alia, that the ALJ erroneously found that its Final Admission of Liability was an admission that it is solely liable for the claimant’s injury. The CCIA argues the ALJ’s finding is inconsistent with the “undisputed” fact that Mid-Century is responsible for the claimant’s workers’ compensation benefits. We perceive no error.
Section 8-43-203(2)(b)(II), C.R.S. 1998, provides that an uncontested final admission of liability automatically closes all admitted issues. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Section 8-42-203(2)(d), C.R.S. 1998, provides that once a claim is closed pursuant to subsection (2), the closed issues may only be reopened pursuant to § 8-43-303
C.R.S. 1998.
In Mesa County Sheriff’s Department v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1119, February 25, 1999) (not selected for publication), the court agreed with our conclusion that under the plain language of subsection (2)(b)(II), an insurer may not object to its own Final Admission, and only the “claimant” retains the right to vitiate the finality of a final admission of liability. Weber v. Mesa County Sheriff’s Department,
W.C. No. 3-113-179 (May 28, 1998). Furthermore, in Safeway, Inc. v. Industrial Claim Appeals Office, supra, the court concluded that an insured employer waived Subsequent Injury Fund (SIF) liability by filing a final admission of liability for permanent total disability benefits without reserving any issue. See also Ricks v. Ampex, W.C. Nos. 3-651-103 3-392-017 (March 20, 1992), aff’d. Ampex v. Industrial Claim Appeals Office (Colo.App. No. 92CA0561, April 8, 1993) (not selected for publication) (filing of uncontested final admission of liability for permanent total disability benefits without reserving issue of SIF liability barred insurer from requesting SIF contribution).
The Safeway court stated that the final admission was an admission that the insured employer was solely liable for the claimant’s permanent total disability. In so doing, the court held that SIF liability for permanent total disability is an affirmative defense to the insured employer’s liability for permanent total disability, which was waived unless explicitly pled. The court also rejected the argument that the insured employer could not “waive” SIF liability without specific knowledge about the extent of SIF liability. To the contrary, the court reasoned that imposing liability on the SIF after the filing of an uncontested final admission of liability which did not reserve any issue could foreclose the SIF’s ability to contest the issue of permanent total disability, and require the claimant to relitigate the issue. We agree with the ALJ that Safeway is dispositive of the CCIA’s arguments.
Here, the CCIA filed a Final Admission of Liability for the payment of permanent disability benefits without reserving any issue including contribution from Mid-Century. Thus, in the absence of the claimant’s objection, the CCIA admitted that it is solely responsible for the claimant’s temporary and permanent disability benefits.
Nevertheless, the CCIA argues the claimant’s failure to object to its Final Admission of Liability did not preclude the ALJ from apportioning liability between insurers. Admittedly, we have issued a series of decisions where we held that the prohibition against the retroactive withdrawal of an admission does not apply to reimbursement between insurers. See Higgins v. Economy Lumber Hardware Company, W.C. Nos. 4-180-367 et al. (February 23, 1995) Watts v. Eben Ezer Lutheran Care Center,
W.C. No. 3-105-560 et al. (February 24, 1994); Alexander v. La Plata Electric Association, Inc., W.C. No. 3-034-667 (July 17, 1991). However, these cases were based upon the withdrawal of a “general” admission of liability, and it is the final admission of liability which is dispositive of the insurer’s liability. Therefore, these case are factually distinguishable from the circumstances presented here. See Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666, 668 (Colo.App. 1998).
Furthermore, the existence of a “waiver” is essentially a factual determination for the ALJ which must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. The substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The CCIA’s arguments notwithstanding, there is substantial evidence to support the ALJ’s finding that the CCIA knew or should have known that it was no longer the insurer on the risk after November 19, 1994, and that the claimant suffered a substantial permanent aggravation of his condition after that date. (See Dr. Yurth reports dated May 10, 1996; August 21, 1996; January 13, 1997; November 13, 1997). Under these circumstances, the ALJ reasonably inferred the CCIA’s Final Admission of Liability was a voluntary, knowing and intelligent waiver of its claim for reimbursement from Mid-Century. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (“waiver” is the intentional relinquishment of a known right, which must be based upon “full knowledge of all the relevant facts.”). Consequently, the ALJ did not err in denying the request for an order requiring Mid-Century to reimburse the CCIA for benefits previously paid.
Our holding in Chandler v. United Airlines, W.C. No. 3-902-709 (July 7, 1998) does not compel a contrary result. Unlike the circumstances presented here, the ALJ in Chandler
determined the insurer did not know the claimant received a social security award until shortly before the hearing on the insurer’s request for a social security offset. Therefore, the ALJ determined that the insurer did not knowingly waive its right to claim a social security offset. We concluded the record supported the ALJ’s determination, and thus, we upheld the ALJ’s order allowing the offset.
Because we uphold the ALJ’s determination that the CCIA’s Final Admission of Liability closed the issue of Mid-Century’s liability, it is immaterial whether the ALJ erroneously characterized CCIA’s claim as a request for “reimbursement” instead of a request for “contribution.” Moreover, in view of our disposition, the ALJ’s erroneous determination that the CCIA’s argument may require the claimant to relitigate his entitlement to permanent total disability benefits is harmless. Therefore, the error will be disregarded. Section 8-43-310 C.R.S. 1998; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 20, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed August 19, 1999 the following parties:
Kevin Seibold, 9345 N. Clermont Dr., Thornton, CO 80229
T.H. Inc. d/b/a Hoshi Motors, 2504 ~ Spruce St., Boulder, CO 80302-3807
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
Susan Weiner, Esq., 1942 Broadway, Ste. 408, Boulder, CO 80302 (For Claimant)
Lisa Varriale, 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
Mid-Century Insurance Company, Attn: Jackie Slade, P.O. Box 378230, Denver, CO 80237-8230
Christian Lind, Esq., 5975 Greenwood Plaza Blvd., #106, Greenwood Village, CO 80111 (For Hoshi Motors and Mid-Century Insurance Company)
BY: le