W.C. No. 4-149-243Industrial Claim Appeals Office.
June 19, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Friend (ALJ) which awarded benefits for scheduled impairments of the claimant’s right upper extremity and lower left extremity. We affirm.
The issue in this case is whether the respondent received adequate notice that the ALJ would consider the issue of permanent disability associated with the claimant’s left knee injury. In this regard, the ALJ found that claimant did not specifically list the issue of left knee disability on the application for hearing. Rather, the issue marked was “permanent partial benefits.” However, the ALJ found that the first report of injury listed a left knee injury, and that the medical reports indicated that the claimant was seeking benefits attributable to the left knee injury. Therefore, the ALJ proceeded to award permanent partial disability benefits based upon a scheduled disability of the left knee.
On review, the respondent contends that it did not receive adequate notice that the ALJ would consider the left knee injury when awarding medical impairment benefits. The respondent argues that it was entitled to proper notice as a matter of due process, and pursuant to the Rules of Procedure governing applications for hearing. See Rule of Procedure VIII(A)(1)(a), 7 Code Colo. Reg. 1101-3 at 21. The respondent asserts that the claimant did not “formally amend her claim to include the compensability of her lower extremity injury,” and that the respondent never agreed “to allow the issue of compensability into the hearing.” We reject this argument.
A party may, by its actions, waive objections concerning the adequacy of notice. Thus, if a party is advised of a particular issue at the commencement of a hearing, fails to object to consideration of the issue, and utilizes the hearing to elicit testimony concerning the issue, the party waives any objection it might otherwise have had to consideration of the issue. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Assuming, arguendo, that the claimant’s application for hearing provided inadequate notice of the lower extremity issue, the respondent waived any objection to consideration of the issue by its conduct at the hearing. At the commencement of the hearing, the claimant’s counsel explicitly stated that the claimant was seeking medical impairment benefits for both the upper and lower extremity. (Tr. p. 4). Moreover, claimant’s counsel submitted a pre-hearing statement and medical records in support of the claim for lower extremity benefits. Although respondent’s counsel expressed some “confusion” concerning the issues, he never made any objection to the ALJ’s consideration of the lower extremity impairment. (Tr. pp. 4-9).
Moreover, respondent’s counsel questioned the claimant’s medical witness, Dr. Harder, concerning whether or not the lower extremity rating was “caused” by the industrial injury. (Tr. pp. 25-26). Counsel also questioned the claimant concerning the cause of the left knee problems. (Tr. pp. 36-37).
These circumstances are largely indistinguishable from those present in Robbolino v. Fischer-White Contractors, supra. In both cases, the party claiming inadequate notice was apprised of the issues at the commencement of the hearing, failed to object to the scope of the issues, and utilized the hearing to elicit testimony concerning the issues.
It is true that, at the conclusion of the hearing, counsel for the respondent raised the question of whether the “compensability” of the left knee problem would be considered, or whether the parties would “need to come to hearing on that.” However, we do not consider this remark as an “objection” to awarding benefits for the left knee. However, even if it were, the objection came too late since the respondent had already waived the right to notice.
In light of this disposition, we need not consider the respondent’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 19, 1996 to the following parties:
Ermalinda Trujillo, 2734 S. Raleigh, Denver, CO 80236
City County of Denver, 110 16th St., Denver, CO 80202-5202
Wayne E. Vaden, Esq., City County of Denver, 1445 Cleveland Place, Annex 1, #200, Denver, CO 80202
Ellis Staker, Claims Adjustor, Workers’ Compensation Unit, 1445 Cleveland Place, Annex 1, #200, Denver, CO 80202
Pepe J. Mendez, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (For the Claimant)
By: _________________________