W.C. No. 3-993-995Industrial Claim Appeals Office.
January 7, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) insofar as the ALJ denied additional disability benefits. We affirm.
The claimant suffered a work-related injury in July 1990. The respondent filed general admissions of liability for temporary disability and medical benefits. On September 27, 1990, the respondent filed a final admission which terminated temporary disability benefits. However, on August 28, 1991, the respondent filed an amended final admission which admitted liability for additional temporary disability benefits. On August 12, 1993, the respondent filed a final admission for permanent partial disability benefits. The claimant never filed an objection to these general or final admissions.
In February 1995, the claimant underwent surgery for the industrial injury. As a result, the respondent voluntarily reinstated temporary disability benefits. In late February 1995, the employer informed the claimant that his “injury leave with pay” status was ending. The employer asked the claimant to attend a meeting on March 3 to discuss his employment options. The ALJ found that at the meeting the employer’s representative told the claimant he would have to leave the employment and accept long-term disability benefits which “would replace workers’ compensation benefits.” The ALJ also found the representative told the claimant he would “always be covered for medical treatment” for the industrial injury. (Finding of Fact 14). Relying on the employer’s representations the claimant applied for long-term disability benefits and left the employment.
The claimant was determined to be at maximum medical improvement (MMI) on April 11, 1995. Thereafter, the respondent filed a final admission dated June 26, 1995, which terminated temporary disability benefits and admitted liability for permanent partial disability benefits. The June 26 final admission also stated “any and all benefits not admitted to in this Final Admission are hereby specifically denied.”
The claimant did not file a written objection to the June 26 final admission. However, in a letter dated July 5, 1995, the claimant notified the Division of Workers’ Compensation that he sought disfigurement benefits. A disfigurement award was entered on October 4, 1995.
Thereafter, the respondent provided continuing medical benefits until November 1997. In August 2000, the claimant was notified about the termination of his long-term disability benefits. The claimant filed a petition to reopen this claim on September 18, 2000, alleging a worsened condition.
The respondent objected and argued the claim closed by virtue of the claimant’s failure to file a timely written objection to the June 1995 final admission. They also alleged the claim was barred from reopening the claim under the six-year statute of limitations in § 8-43-303
C.R.S. 2002.
The ALJ found the claimant’s request for disfigurement benefits was not a timely objection to the June 1995 final admission on any issue except disfigurement. In addition, the ALJ was not persuaded that the respondent’s voluntary payment of medical benefits after June 26, 1995, established the respondent had agreed to reopen the claim for other issues. Finding that the six-year statute of limitations for reopening under § 8-43-303 had expired, the ALJ determined there is no statutory authority for reopening the claim.
However, the ALJ determined the respondent is equitably estopped from contending the issue of medical benefits was closed. Therefore, the ALJ ordered the respondent to provide additional treatment for the industrial injury.
On review, the claimant contends he substantially complied with the statutory requirement to file a timely written objection to a final admission. The claimant also contends the record compels the conclusion the respondent is equitably estopped from denying liability for other workers’ compensation benefits. We perceive no error in the ALJ’s order.
I.
Former § 8-43-203(2)(b), C.R.S. 1996 Cum. Supp. [enacted by House Bill 96-1235, 1996 Col. Sess. Laws, ch. 174], which governs this claim, provides that a final admission of liability:
“shall include a statement that this is the final admission by the workers’ compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest this admission in writing within sixty days of the date of the final admission the case will be automatically closed.”
If no timely objection is filed, the claim is automatically closed “as to the issues admitted in the final admission.” Thereafter, no further benefits may be awarded on the closed issues in the absence an order reopening the claim. Former §§ 8-43-303(1) and (2) C.R.S. (1996 Cum. Supp.) [amended 1997 Colo. Sess. Laws, ch. 25 at 113, and applicable to injuries occurring on or after July 1, 1997], allow a claim to be reopened within six years of the date of injury or within two years of the date the last temporary or permanent disability benefits become due or payable.
As argued by the claimant we have previously held that a timely-filed application for hearing constitutes substantial compliance with §8-43-203(2)(b)(II), C.R.S. 2002. That statute requires claimants to “contest the final admission in writing and request a hearing” within 30 days of the date of the final admission to avoid an automatic closure Lehmann v. Aurora Public Schools, W.C. No. 4-426-778 (March 19, 2001) McCotter v. U.S. West Communications Inc., W.C. No. 4-430-792 (March 15, 2001); Mitchell v. Office Liquidators Inc., W.C. No. 4-409-905 (December 29, 2000). However, none of those cases address the question of whether an objection on one specific issue preserves all issues for future litigation. Further, we are not persuaded that such an objection is sufficient to constitute an objection to all issues covered by the final admission.
The overall purpose of § 8-43-203(2)(b) is to establish a mechanism for administrative closure of claims, without the necessity of litigation, in cases presenting no legitimate controversy. Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998). The purpose of requiring a written objection is to notify the respondent that the claimant does not accept the respondent’s final position concerning the claimant’s entitlement to benefits, and to alert the respondent that there is an ongoing controversy which is not subject to resolution by administrative closure. Cf. Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984). Thus, the statute inherently requires the claimant to provide notice of the issues that may be in controversy.
Here, the claimant’s request for disfigurement benefits provided notice to the respondent that the failure to admit liability for disfigurement was contested. However, the claimant did not generally object to the June 1995 final admission nor indicate that he disputed any other portion of the admission. Neither did the claimant request a hearing on any other issue, including the termination of temporary disability benefits. Under these circumstances, we agree with the ALJ that the claimant’s objection only preserved the issue of disfigurement for further litigation. Since the claimant did not file a timely objection to the denial of other benefits, the claim was closed concerning those issues subject to reopening under § 8-43-303. However, reopening was precluded due to the six-year statute of limitations.
II.
We also reject the claimant’s contention that the ALJ erred in failing to find the respondent “waived” the requirements of § 8-43-303 by paying medical benefits after the June 1995 admission. “Waiver” is the intentional relinquishment of a known right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). We have previously held that a voluntary reopening of a claim on one issue does not automatically establish the claim is reopen for other issues. See Notz v. Notz Masonry Inc., W.C. No. 41-58-043 (September 30, 1999). We adhere to our prior conclusions.
Here, there is no finding or assertion that the respondent paid or promised to pay any disability benefits after June 26, 1995. To the contrary, the ALJ found the employer’s representative told the claimant he would have to apply for long-term disability benefits to “replace” the workers’ compensation disability benefits. Accordingly, the claimant’s expectation that the long-term disability benefits would continue until his retirement does not compel a finding that the respondent promised to pay additional temporary disability benefits under the Workers’ Compensation Act.
Similarly, the respondent did not pay or promise to pay permanent partial disability benefits in excess of the amount listed in the June 1995 final admission. To the contrary, the admission expressly notified the claimant of the respondent’s position that “any and all benefits not admitted to in this Final Admission are hereby specifically denied.” Consequently, the ALJ reasonably concluded that the respondent’s payment of additional medical benefits was insufficient to establish that the respondent waived the right to require the claimant to establish grounds to reopen the claim to obtain additional disability benefits.
Alternatively, the claimant contends the record compels a conclusion that the respondent is equitably estopped from denying liability for additional disability benefits. Again, we disagree.
Equitable estoppel exists where the following criteria are met:
“[T]he party to be estopped must know the relevant facts; the party to be estopped must also intend that its conduct be acted on or must so act that the party asserting the estoppel has a right to believe the other party’s conduct is so intended; the party asserting the estoppel must be ignorant of the true facts; and the party asserting estoppel must detrimentally rely upon the other party’s conduct.”
See Johnson v. Industrial Commission, supra.
As argued by the respondent, estoppel is generally treated as an affirmative defense, which is waived if not expressly pled. See C.R.C.P. (8)(c). However, in Sneath v. Express Messenger Service, 931 P.2d 565
(Colo.App. 1996), the court concluded that an estoppel argument can be pled without using the term “estoppel.”
Relying on Sneath v. Express Messenger Service, supra, we conclude the claimant raised the estoppel argument in his Objection to the Respondent’s Motion to Dismiss dated November 9, 2001. Furthermore, the substance of the argument was raised at the commencement of the hearing before the ALJ. Indeed, the respondent was granted a continuance to prepare a defense to claimant’s estoppel argument. (See Tr. April 4, 2002, pp. 5, 14, 16, 18). Under these circumstances, we conclude the estoppel argument was properly before the ALJ for consideration.
However, the record supports the ALJ’s finding that the employer’s representatives made no promises to the claimant regarding his entitlement to further temporary disability benefits. To the contrary, at the March 3 meeting they told the claimant he should apply for long-term disability benefits, the final admission terminated temporary disability benefits as of April 10, 1995, and the respondent did not pay temporary disability benefits after that date.
Insofar as the claimant is arguing that he relied on the promise of benefits that would “replace” temporary total disability benefits, such benefits could only replace temporary disability benefits until terminated in accordance with the law. The claimant is presumed to know the applicable law. See Paul v. Industrial Commission, 632 P.2d 638
(Colo.App. 1981). Consequently, the claimant could not prove he was ignorant of the fact that no temporary disability benefits were payable after MMI. Section 8-42-105, C.R.S. (1990 Cum. Supp.). Under these circumstances, the ALJ could and did conclude the claimant failed to prove he reasonably relied on a promise for future workers’ compensation disability benefits in applying for long-term disability benefits.
The claimant’s remaining arguments have been considered and are not persuasive. The claimant cites no statute or rule, and we are aware of no authority to support the claimant’s contention the respondent was required to file an amended admission upon payment of the disfigurement award. See Rules of Procedure, Rule IV, 7 Code Colo. Reg. 1101-3. Thus, the respondent’s failure to do so does not compel the conclusion the respondent voluntarily reopened the claim on the issues of temporary and permanent disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 3, 2002, 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, 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 the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _________January 7, 2003 _________to the following parties:
Billy R. Vigil, 15980 W. 3rd Pl., Golden, CO 80401
Linda Mitchell, Jefferson County, 100 Jefferson County Pkwy., Golden, CO 80419
Barbara J. Furutani, Esq., 1732 Race St., Denver, CO 80206 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: __________A. Hurtado__________