Opinion
W. C. Nos. 4-706-313, 4-706-314 and 4-706-315.
September 24, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated May 21, 2007, that granted the respondents' motion for summary judgment and ordered three claims dismissed with prejudice. We affirm.
The claimant sustained an admitted work-related injury to her right forearm on December 19, 1999 in claim W.C. No. 4-446-976. The respondents filed a final admission of liability on May 19, 2001. The claimant filed a petition to reopen on July 3, 2006, and the respondents moved for summary judgment on the grounds that six years had passed since the date of the claimant's injury and four years had passed since the payment of any benefits. An order granting summary judgment for the respondents was entered on August 30, 2006, on the basis that the petition to reopen was barred by the time periods specified in § 8-43-303, C.R.S. 2007. No appeal was taken from the order granting summary judgment.
The claimant then filed three workers' claims in 2006, alleging subsequent injuries to her right wrist and forearm. These three subsequent claims are the subject of the present appeal by the claimant. In claim W.C. 4-706-313 the claimant asserted that she fell while assisting family members in New Mexico and injured her right arm on April 30, 2006. In claim W.C. 4-706-314 the claimant asserted that she fell in her driveway at home on August 2, 2006, and injured her right arm. In claim W.C. 4-706-315 the claimant asserted that she injured her right arm on August 14, 2006 while at her home. The claimant does not contend that any of the three subsequent injuries occurred while she was performing service arising out of and in the course of her employment with the respondent employer. Rather, the claimant argues that in each of the three subsequent claims her arm was re-broken and the subsequent injury was the result of the weakened condition caused by the 1999 injury. The ALJ assumed for the purposes of the order granting summary judgment, that the subsequent breaks were the result of the weakened condition caused by the original injury.
In his order granting summary judgment for the respondents and dismissing all three subsequent claims with prejudice, the ALJ concluded that the three subsequent injuries from the weakened condition were not "new" injuries. In addition the ALJ found that even if the three subsequent claims represented new disabilities arising from the 1999 injury, the disabilities occurred more than five years following the original injury, and were therefore conclusively presumed not to be due to the injury under § 8-41-206, C.R.S. 2007.
The claimant argued before the ALJ that the statute of limitations for filing for a claim did not begin to run until the claimant, as a reasonable person, knew or should have known of the weakened condition and further, that the claimant could not have known of the weakened condition until 2006 when she broke her arm. The ALJ found that the claimant's argument was made under § 8-43-103(2), C.R.S. 2007 (general two year period for filing a notice claiming compensation) and not under § 8-43-303 (time limits for reopening) or § 8-41-206 (disability beginning five years after injury). The ALJ determined that the time limits to reopen a claim run from the date of the injury and the date of the last benefits due and not, as the claimant argued, from the date the claimant knew of the condition. This appeal followed the ALJ's dismissal of all three subsequent injury claims on summary judgment.
Summary judgment may be sought in a workers' compensation proceeding. Fera v. Industrial Claim Appeals Office of State, ___ P.3d ___ (Colo.App. 2007); McCormick v. Exempla, W.C. No. 4-594-683 (July 03, 2007). The Office of Administrative Courts has promulgated a procedural rule authorizing summary judgment. Office of Administrative Courts' Rule of Procedure (OACRP) 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See OACRP 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). It is true that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). All doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
The Workers' Compensation Act mandates the standard we must apply when reviewing grants of summary judgment made by an ALJ. The bases enumerated in § 8-43-301(8), C.R.S. 2007, on which we may set aside an order of the ALJ are:
[T]hat conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the director or administrative law judge are supported by substantial evidence, they shall not be altered by the panel.
We must therefore accept the ALJ's statements of undisputed facts pertaining to a request for dismissal of claims for compensation if substantial evidence in the record supports that statement of facts, but we must set aside the grant of summary judgment if we determine that conflicts in the evidence are not resolved in the record or the order is not supported by applicable law. Fera v. Industrial Claim Appeals Office, supra. In our view the ALJ did not err in dismissing the three subsequent claims.
On appeal the claimant does not contend that there are disputed issues of fact. The claimant agrees that when she filed the petition to reopen the original 1999 claim it was not done within six years of the date of the original injury or within two years of the date that compensation was last paid. The claimant further concedes that there is no case law which supports the argument originally made by the claimant that the time period in which to file a petition to reopen did not run until the claimant as a reasonable person, knew or should have known of the weakened condition of the arm. We note that the first ALJ's ruling dismissing the petition to reopen the 1999 claim is consistent with previous case law holding that the respondents' liability for subsequent injuries is limited by the reopening statute. Lutgen v. Teller County School District No. 2, W.C. No. 3-846-454 (June 12, 1996), aff'd., Teller County School District No. 2 v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1194, December 27, 1996) (not selected for publication).
The claimant did not appeal the order dismissing the petition to reopen the original 1999 claim and therefore the issue of whether the petition to reopen the original claim was timely filed under § 8-43-303 has been finally resolved against the claimant. Instead the claimant argues that when a person suffers an injury which would not have occurred but for the weakened condition of the limb caused by the prior admitted industrial injury the subsequent injury is a "new work-related injury."
Citing Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001) the claimant argues that the statute of limitations for filing the injury resulting from the weakened condition did not run until the claimant, as a reasonable person, knew or should have known of the weakened condition. Therefore the claimant contends the ALJ erred in dismissing the three subsequent claims on the basis that the time limit to reopen the original claim had passed.
The claimant's reliance on Hoaglund v. B B Excavating, supra is misplaced. Hoaglund involved the question of whether a claimant as a reasonable person should have recognized the nature and seriousness of an injury for purposes of triggering the statute of limitations set forth in § 8-43-103(2). Here the issue is not whether the three subsequent claims were barred by the general two-year statute of limitations in § 8-43-103(2). All three of the subsequent claims involved accidents which occurred in 2006 and all three subsequent claims were filed in 2006. Therefore, if the three subsequent claims are "new" injuries they are not time barred by § 8-43-103(2). Further, the respondents have not argued that the three subsequent claims are time barred by § 8-43-103(2).
Rather the issue here is whether the three subsequent claims can be pursued, based on a theory that they are "new" injuries occurring as a result of a weakened condition caused by the original 1999 claim. As noted, that claim is presently closed by the final admission of liability and by the claimant's failure to appeal the order dismissing the previous petition to reopen. We agree with the ALJ that the three subsequent claims are not "new" injuries. The three subsequent claims are dependent on the original 1999 claim which was closed. We note that no petition to reopen that original 1999 claim was before the ALJ when he entered the present order under appeal.
We acknowledge that additional injuries that result from a claimant's weakened condition caused by an initial injury are compensable because they are the natural, albeit not necessarily the direct, result of the first injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970) (injury resulting from fall caused by weakened condition of leg due to prior injury compensable, even though fall occurred while employee was off work); See also Employers Fire Ins. Co. v. Lumbermens Mut. Cas. Co. 964 P.2d 591 (Colo.App. 1998). The additional injuries are compensable because of their relationship to the underlying workers' compensation case.
In Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622, the claimant's right leg was fractured in an admitted accident in the course of his employment. Thereafter, the claimant underwent corrective surgery, including a bone graft. Fourteen months later, the claimant slipped and fell on an icy sidewalk, refracturing his right leg. The medical testimony in that case showed that the second fracture probably would not have occurred except for the weakened condition of the bone and the weakened musculature of the leg caused by the initial fracture and resulting surgery. The ALJ found that there was a causal connection between the second fracture and the original compensable injury, and the award of benefits for the second fracture was upheld by the Colorado Supreme Court: As the supreme court noted, "Once the injury is determined to have arisen out of and during the course of claimant's employment obviously the results flowing proximately and naturally therefrom come under the aegis of the statute."
As we read Standard Metals Corp. v. Ball, supra, nothing in that opinion suggests that a subsequent injury resulting from a weakened condition is a "new" injury. Rather, the court recognized that an injury resulting from a weakened condition was within the range of potential compensable consequences stemming from the underlying industrial injury. Therefore, where the industrial injury leaves the body in a weakened condition subsequent injuries might be compensable consequences of the original injury. See Standard Metals Corp. v. Ball, supra. The rationale for compensability of the subsequent injury is the causal relationship to the underlying workers' compensation injury. See Jarosinski v. Industrial Claim Appeals Office of State 62 P.3d 1082 (Colo.App. 2002). Consequently, nothing in the court's reasoning suggests the conclusion that the subsequent injury is a "new" one for purposes of the Act. See Price Mine Serv., Inc. v. Indus. Claim Appeals Office, 64 P.3d 936 (Colo.App. 2003) (quasi-course of employment injuries and injuries that are naturally and proximately caused by an industrial injury do not give rise to new claims in contrast to separate intervening causes which do give rise to new claims).
Additionally in order to prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2007; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Here the claimant confessed that none of the three subsequent breaks occurred at work and further conceded that the breaks did not "occur in the course and scope of the claimant's employment," but argues the breaks were the result of her original fracture, which caused the weakened condition. Therefore, it is undisputed that the three subsequent injuries standing on their own as "new claims," rather than as compensable consequences stemming from the underlying industrial injury, would not be compensable. We perceive no error in the ALJ's determination that the three subsequent claims were not "new" injuries.
The claimant also argues that the six-year period of the reopening statute cannot be construed to preclude this claim because it would then "be the only statute of limitations which permits the limitation to expire before the Claimant even knows of the injury." Memorandum Brief in Support of Petition to Review at 3. However, in our view, this argument misconstrues the essential nature of the limitation period in § 8-43-303(1). The six-year period in § 8-43-303(1) is in the nature of a statute of repose rather than a statute of limitations. It is true that the "discovery rule" generally precludes a statute of limitations from running prior to the plaintiff's knowledge of the claim. Nichols v. Burlington and Santa Fe Railway, 56 P.3d 106 (Colo.App. 2002) (statute of limitations begins to run when reasonable person knows of the injury and its governing cause). However, a statute of repose may set a fixed time after which a claim may not be brought regardless of the knowledge of the injured party. "Unlike a statute of limitations, a statute of repose may bar a claim before the injury occurs." Anderson v. M.W. Kellogg Company, 766 P.2d 637, 640 (Colo. 1988). Similarly, a statute of repose may set temporal limitations that can expire before the claimant discovers the claim. Lewis v. Colorado Department of Labor and Employment, 924 P.2d 1183, 1185 (Colo.App. 1996). Such a statute does not result in any due process or equal protection violation. Id.; Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo.App. 1982). Here, § 8-43-303(1) is similar to a statute of repose. It fixes a six-year period after which a claim may not be reopened, regardless of the occurrence of factors that might have warranted reopening prior to the expiration of the limitation period. Accordingly, we are not persuaded by the claimant's argument that § 8-43-303(1) must be construed to permit these claims.
II.
Finally, the claimant contends that she has not been compensated for the weakened condition caused by the original industrial injury. The claimant asserts that the only reason the Workers' Compensation Act is constitutional is because it provides an adequate statutory remedy to replace the claimant's common law rights. Therefore, the claimant argues that if she is not reimbursed for the present injuries the Act does not provide an adequate replacement for the claimant's loss of her common law rights.
We understand the claimant's argument to be a "facial" challenge to the Act. We lack jurisdiction to address constitutional challenges to the Workers' Compensation Act. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Therefore, we do not consider the claimant's constitutional argument. Accordingly, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
Because we conclude that the three subsequent claims do not represent "new" injuries it is unnecessary for us to address the additional basis under § 8-41-206 that the ALJ relied upon in dismissing the claims. IT IS THEREFORE ORDERED that the ALJ's order dated May 21, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
APRIL LANZA, 2116 SALT DRIVE, COLO SPGS, CO, 80910 (Claimant)
AMERICAN HOME ASSURANCE, Attn: RICHARD A. BOVARNICK, C/O: CLIFTON, MUELLER BOVARNICK, P.C., 789 SHERMAN STREET SUITE 500, DENVER, CO, 80203 (Insurer).
ALEXANDER AND RICCI PC, Attn: WILLIAM A. ALEXANDER, 3055 AUSTIN BLUFFS PKWY, SUITE B, COLO SPGS, CO, 80918 (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: RICHARD A. BOVARNICK, 789 SHERMAN STREET SUITE 500, DENVER, CO, 80203 (For Respondents).
CMI, Attn: LEAANDRA GAVELLAS, PO BOX 1288, BENTONVILLE, AR, 72712 (Other Party).