W.C. No. 2-862-071Industrial Claim Appeals Office.
August 17, 1998
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Rumler (ALJ), which determined that his petition to reopen is barred by the statute of limitations. The claimant also argues the ALJ erred in failing to recuse herself. We affirm.
The pertinent facts are undisputed. The claimant sustained a compensable injury on November 3, 1975, and was admitted to the Colorado Major Medical Insurance Fund (Fund) on January 3, 1989. From 1989 to the present he has received medical treatment at the Fund’s expense.
The claimant last received temporary total disability benefits in March 1992. A Final Admission of Liability was filed on September 29, 1992, and the claimant made no objection to the admission.
On March 10, 1997, the claimant filed a petition to reopen seeking temporary total disability benefits for a period in 1995 during which he was unable to work. During this time, the claimant was receiving medical care for the industrial injury.
The respondents filed a Motion for Summary Judgment alleging that the petition to reopen is barred by the statute of limitations currently codified at § 8-43-303(2)(a), C.R.S. 1997. The respondents reasoned that the last temporary or permanent disability benefits were paid more than two years before the claimant filed the 1997 petition to reopen. In contrast, the claimant took the position that the statute of limitations for reopening is controlled by the statute in effect on the date of the injury, former § 8-53-119. 1975 Colo. Sess. Laws, ch. 71 at 307. In cases where compensation was paid, § 8-53-119 provided for reopening “at any time within two years after the date last payment becomes due and payable or within six years from the date of injury.” Citing Swerdfeger v. Swerdfeger, 793 P.2d 618
(Colo.App. 1990), the claimant reasoned that the Fund’s provision of medical benefits constituted a “payment” for purposes of § 8-53-119, and therefore, the respondents had paid medical benefits within two years of the date of the 1997 petition to reopen.
The ALJ granted the respondents’ motion and ruled that, regardless of which version of the statute applies, the claimant’s petition to reopen is barred by the statute of limitations. Concerning § 8-43-303(2)(a), the ALJ determined that the 1997 petition to reopen was filed more than two years after the claimant last received indemnity compensation. With respect to § 8-53-119, the ALJ concluded that the statute “makes a distinction between compensation and medical benefits.” Specifically, the ALJ stated that the “statute uses the word compensation to start the time running, and then states that both compensation and medical benefits, thereby making a distinction, can be awarded upon reopening.”
I.
On review, the claimant contends the ALJ erred in determining that the 1997 petition to reopen is barred by the statute of limitations. The claimant again asserts that the petition to reopen is governed by former § 8-53-119, and that the Fund’s payment of medical benefits constituted a “payment” for purposes of extending the statute of limitations. However, we agree with the respondents that the petition to reopen is governed by §8-43-303, and is barred under that statute.
We previously ruled that when a petition to reopen is filed after July 1, 1988, the applicable statute of limitations is contained in the statute currently codified at § 8-43-303. See Hereford v. Mr. Steak, W.C. No. 3-589-581 (October 3, 1996); Dwyer v. Barath Acoustics, Inc., W.C. No. 3-780-222 (December 7, 1992). The following language from Hereford v. Mr. Steak is pertinent:
“Section 8-53-119 was repealed and reenacted as § 8-53-113 in 1983. See Colo. Sess. Laws 1983, ch. 79 at 421. Thereafter, insofar as pertinent here, § 8-53-113 was amended in 1988. See Colo. Sess. Laws 1988, ch. 50 at 388. The 1988 version of the statute expressly applies to petitions to reopen filed on or after July 1, 1988 [§ 8-53-113 subsequently renumbered as § 8-43-303 at Colo. Sess. Laws 1990, ch. 62 at 509; amended 1991 Colo. Sess Laws, ch. 219 at 1323 concerning permanent total disability]. Because the claimant’s petition to reopen was filed after 1988, the 1988 amendments are applicable. See Garrett v. Arrowhead Improvement Association, 826 P.2d 850 (Colo. 1992); Dwyer v. Barath Acoustics, Inc., W.C. No. 3-780-222, December 7, 1992.”
Here, the claimant’s petition to reopen was filed after July 1, 1988. Therefore, it is governed by the 1988 amendments to the statute of limitations reflected in § 8-43-303(2)(a). The General Assembly made an express statement concerning the petitions to which the 1988 amendments apply, and we are not at liberty to depart from that express statutory direction. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Further, we are without jurisdiction to determine whether applying of the 1988 amendments to the claimant’s 1975 injury and 1997 petition to reopen constitutes unconstitutional retrospective legislation. See Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Wood v. Beatrice Foods Co., 813 P.2d 821
(Colo.App. 1991).
We note the claimant’s suggestion that the General Assembly did not intend the 1988 amendments to apply to petitions to reopen filed after 1990 because the provision concerning the effective date of the amendments is not mentioned in the 1990 recodification of the Workers’ Compensation Act. However, the 1990 statute simply repealed and reenacted the prior version of the statute, and involved a “nonsubstantive revision of the law concerning the workers’ compensation system.” See 1990 Colo. Sess. Laws, ch. 62 at 468. Therefore, we infer no legislative intent to alter the applicability of the 1988 amendments.
Thus, the ALJ correctly ruled that this case is governed by the statute of limitations contained in § 8-43-303(2)(a). At the time of the 1988 amendments, the General Assembly created different statutes of limitations for petitions to reopen seeking indemnity compensation and those seeking only medical benefits. Because the claimant’s 1997 petition to reopen sought temporary disability benefits, the ALJ correctly ruled that it is barred by § 8-43-303(2)(a). See Swerdfeger v. Swerdfeger, supra (under 1988 amendments, provisions for reopening of medical benefits are now expressly and separately set forth).
Insofar as the claimant has made other arguments on this issue, we find them to be without merit.
II.
On December 15, 1997, nearly a month after entry of the ALJ’s substantive order, the claimant filed a motion to recuse. The motion argued that during the hearing on July 17, 1997, the ALJ expressed hostility to the claimant and indicated she would rule in favor of the respondents unless the claimant was represented by an attorney. The motion also argued that the ALJ declined to allow the claimant’s daughter to participate in the hearing.
On January 21, 1998, the ALJ denied the motion to recuse. In her order, the ALJ stated that she had no bias against the claimant and based her decision to dismiss the petition to reopen “solely upon the arguments and authority and stipulated facts.” The ALJ further stated that the claimant “misinterpreted the Judge’s zeal to determine the extent and complexity of the legal issues that would ultimately need to be determined, and to make sure that [the claimant] was aware of the complexity and had adequate representation, as somehow indicating that the Judge was prejudiced against him because he did not have an attorney and prejudged his case.”
On or about May 4, 1998, the claimant refiled the motion to recuse. We consider this motion to be an argument that the ALJ erred in denying the original motion to recuse.
Initially, we conclude that the claimant waived the right to file a motion to recuse. If the claimant had desired another ALJ to enter the original order, the motion to recuse should have been filed prior to entry of the substantive order, not afterwards See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. 1993) (party may not complain of invited error).
In any event, we conclude that claimant’s argument lacks merit. Generally, ALJs carry a “presumption of integrity, honesty, and impartiality” in the conduct of hearings. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). Further, ALJ’s are presumed to be competent and unbiased until the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995).
We have reviewed the transcript of the July 17 hearing, and find that it supports the ALJ’s statement that she was not biased against the claimant, but merely attempted to insure he recognized the complexity of the case and the possibility that he would be better served by retaining an attorney. Further, the ALJ correctly recognized that only attorneys are allowed to represent claimants before the Division of Administrative Hearings. See
Rule of Procedure VIII(Q), 7 Colo. Reg. 1101-3 at 31-31.01. Thus, the ALJ’s decision not to allow the claimant’s daughter actively to participate in the hearing was proper and not proof of bias.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed _____________________________ to the following parties:
Walter W. Vetten, 1221 S. Dayton, Denver, CO 80231
Prestressed Concrete, Matthew W. Tills, Esq., 1225 Seventeenth St., 28th Flr., Denver, CO 80202-5528
Barbara Carter, Major Medical Insurance Fund, Special Funds Unit — Interagency Mail
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. — Interagency Mail
Matthew W. Tills, Esq., 1225 Seventeenth St., 28th Flr., Denver, CO 80202-5528 (For the Respondents)
By: _______________________