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In re McCotter, W.C. No

Industrial Claim Appeals Office
Mar 15, 2001
W.C. No. 4-430-792 (Colo. Ind. App. Mar. 15, 2001)

Opinion

W.C. No. 4-430-792

March 15, 2001


ORDER OF REMAND

The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied the claimant's request for additional permanent disability benefits because the claimant failed properly to contest a final admission of liability. The claimant contends the ALJ erred in holding that his application for hearing was insufficient to contest the final admission because it was not filed with the Division of Workers' Compensation (Division). We set the order aside and remand the matter for further proceedings.

On April 28, 2000, the respondents mailed a final admission of liability for permanent partial disability benefits based on a scheduled impairment of 29 percent of the lower extremity. This admission was predicated on a rating issued by a Division independent medical examination (DIME) physician. The final admission of liability contained a notice to the claimant stating that within 30 days of the date of the admission the claimant must complete the attached "Objection form or write a letter" to the Division, with a copy to the insurer, "stating that you object to this admission." The notice also stated that if the claimant had any "disputed issues" she must submit an application for hearing to the Division of Administrative Hearings (DOAH). The claimant did not file any document with the Division, but mailed an application for hearing to the DOAH on May 31, 2000. The application listed the issue for hearing as "Overcome Division IME ruling."

At the hearing, the respondents moved to dismiss the claim for additional permanent disability benefits, arguing the claimant failed to comply with the mandatory requirements for contesting a final admission of liability set forth in § 8-43-203(2)(b)(II), C.R.S. 2000. No testimonial evidence was received, although the record contains the first page of the final admission of liability and the claimant's application for hearing.

On September 25, 2000, the ALJ entered a written order dismissing the claim for additional permanent disability benefits. The ALJ found the final admission advised the claimant he was required to file an "objection" to the final admission with the Division and an application for hearing with the DOAH. Further, the ALJ found the claimant did not file an objection with the Division as required by § 8-43-203(2)(b)(II). Therefore, he concluded the claim was closed by operation of law.

On review, the claimant contends he "substantially complied" with § 8-43-203 (2)(b)(II) by filing the application for hearing with the DOAH. The claimant reasons the "notice" objectives of the statute were satisfied, and the failure to provide the Division with an "objection" within 30 days is not fatal. We agree.

Section 8-43-203(2)(b)(II) provides as follows:

An admission of liability for final payment of compensation 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 to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing. . .(Emphasis added).

In Mitchell v. Office Liquidators Inc., W.C. No. 4-409-905 (December 29, 2000), we concluded the filing of an application for hearing was sufficient to "contest the final admission in writing" for purposes of § 8-43-203(2)(b)(II), and rejected the assertion the claimant was required to file a separate written "objection" in order to contest the final admission. Applying principles of statutory construction, we held the purpose of the 1998 amendments to the statute, which reduced the time for contesting a final admission from 60 to 30 days, and added the requirement to "request a hearing on any disputed issues that are ripe for hearing," was to promote the "prompt closure of claims by reducing the time period for objecting to a final admission and requiring that all issues ripe for adjudication be scheduled for hearing." We also held the purpose of requiring a written contest within 30 days of the date of the admission is to "notify the respondents that the claimant does not accept the respondents' `final' position concerning the claimant's entitlement to benefits, and to alert the respondents 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, we reasoned the statute contemplates circumstances where the claimant may contest the final admission, but no application for hearing is required because no issues are currently ripe for adjudication. Conversely, we concluded that no separate "contest" is necessary where an application for hearing provides written notification to the respondents that the claimant is contesting the final admission. See also Lee v. Arapahoe County, W.C. No. 4-215-262 (August 9, 1995) (decided under the law as it existed prior to the 1998 amendments). We see no reason to depart from that analysis.

Moreover, we are unpersuaded that failure to notify the Division in addition to the respondents within 30 days bars the claimant from contesting the final admission. The statute does not expressly require the Division to be notified in writing of the claimant's intent to contest the admission within 30 days after the date of the final admission, nor does it even mention the Division. Compare § 8-43-203(1)(a), C.R.S. 2000 (admission of liability or notice of contest must be filed with claimant and the Division); Dorris v. Gardner Zemke Co., 765 P.2d 603 (Colo.App. 1988) (imposing penalty for period of time when admission was provided to claimant, but not the Division of Labor). Section 8-43-203(2)(b)(II) merely requires that the final admission contain a statement as "to whom the claimant should provide written objection." (Emphasis added). In the absence of any express statutory direction mandating that the Division receive notice of the claimant's objection within 30 days, we conclude the respondents' designation cannot impose a jurisdictional bar which would prevent the claimant from challenging the final admission. Cf. Department of Institutions v. Industrial Claim Appeals Office, 780 P.2d 72 (Colo.App. 1989).

It follows the ALJ erred in concluding the claimant's failure to file a written objection with the Division within 30 days was fatal to his right to challenge the final admission of liability. Consequently, the ALJ's order must be set aside.

However, we note the respondents also argued the claimant did not timely file the application for hearing. In response, the claimant made a factual allegation that the admission did not become final until May 2, 2000, when the "IME unit" sent a letter to the DIME physician. (Tr. p. 7). Because the ALJ did not conduct an evidentiary hearing concerning this allegation, and made no legal ruling concerning the timeliness of the claimant's application for hearing, the matter must be remanded for a hearing and entry of a new order on that issue.

IT IS THEREFORE ORDERED the ALJ's order dated September 25, 2000, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ David Cain

________________________________ Bill Whitacre

Copies of this decision were mailed March 15, 2001 to the following parties:

Mary McCotter, 9850 Federal Blvd., #189, Federal Heights, CO 80260-5772

U.S. West Communications, 1801 California St., #1150, Denver, CO 80202-2658

Reliance National Indemnity, Debbie Baird, Sedgwick Claims Management Services, P. O. Box 13529, Denver, CO 80201-3529

James E. Freemyer, Esq., 1545 Ogden St., Denver, CO 80218-1405 (For Claimant)

Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)

BY: A. Pendroy


Summaries of

In re McCotter, W.C. No

Industrial Claim Appeals Office
Mar 15, 2001
W.C. No. 4-430-792 (Colo. Ind. App. Mar. 15, 2001)
Case details for

In re McCotter, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF MARY McCOTTER, Claimant, v. U.S. WEST…

Court:Industrial Claim Appeals Office

Date published: Mar 15, 2001

Citations

W.C. No. 4-430-792 (Colo. Ind. App. Mar. 15, 2001)

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