In re Graves, W.C. No

This case is not covered by Casetext's citator
Industrial Claim Appeals OfficeSep 1, 1999
W.C. No. 3-936-811 (Colo. Ind. App. Sep. 1, 1999)

W.C. No. 3-936-811

September 1, 1999.


The respondent seeks review of an order of Administrative Law Judge Gandy dated May 17, 1999, which reopened the claim and awarded additional benefits. We affirm.

On February 7, 1989, the claimant suffered compensable injuries to his back, cervical and dorsal spine, and left upper extremity during a motor vehicle accident. As a result of the injuries, the claimant complained of pain, numbness and tingling in the left upper extremity. In 1990, the claimant was diagnosed with thoracic outlet syndrome. However, the claimant declined surgery. The claim was closed pursuant to the respondent's filing of an uncontested Final Admission of Liability for permanent partial disability benefits. On December 10, 1990, the Division of Workers' Compensation approved a Stipulation for the full and final settlement of the claim, which expressly reserved the claimant's right to reopen the claim in the future.

On May 12, 1996, the claim petitioned to reopen the claim on grounds of a worsened condition and having undergone a two-level anterior cervical fusion. The respondent argued that the claim is barred from reopening due to the six year statute of limitations in § 8-43-303, C.R.S. 1998. The ALJ agreed with the respondent and in an order dated February 20, 1997, the ALJ denied the petition to reopen.

On February 3, 1998, we affirmed the ALJ's order. However, in Graves v. Industrial Claim Appeals Office, (Colo.App. No. 98CA0300, August 20, 1998) (not selected for publication), the court concluded we erred in affirming the ALJ's order. The court found the respondent did not raise the statute of limitations defense until the conclusion of the hearing before the ALJ, and the evidence did not support our conclusion that the claimant waived his objection to the ALJ's consideration of the defense. Consequently, the court set aside our order and remanded the matter for further consideration of the claimant's petition to review. The respondent's petition for writ of certiorari review was denied March 8, 1999. The court's mandate was issued on March 19, 1999.

On remand, and without further hearing, the ALJ entered the order on review. The ALJ determined that the court concluded as a matter of law that the respondent waived the statute of limitations defense to reopening the claim. The ALJ also found the claimant established a worsening of his condition, which caused a need for cervical surgery and temporarily disabled the claimant from work between April 15, 1996 and December 21, 1996. Therefore, the ALJ reopened the claim, and ordered the respondent to pay additional medical and temporary disability benefits. The respondent timely appealed.

The respondent contends that the ALJ erroneously found the court concluded the statute of limitations defense was waived and that the claim must be "reopened as a matter of law." The respondent also contends that the ALJ erroneously reopened the claim without a further hearing, or a determination of whether the respondent established good cause for the late endorsement of the statute of limitations defense as provided by the Rules of Procedure, Part VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21. We reject these arguments.

As stated by the court, the statute of limitations defense is waived if not affirmatively plead in the answer, unless the opposing party waives objection to the absence of a timely pleading. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). The court found that the respondent did not raise the statute of limitations defense in its response to the application for hearing, in its letter denying the petition to reopen, or at the commencement of the hearing. Further, the court concluded that the issue was not tried by consent, and that the claimant did not waive his objection to the respondent's failure timely to raise the defense. Under these circumstances, we agree with the ALJ that the court concluded as a matter of law that the respondent waived the statute of limitations defense.

Moreover, the court's opinion in Graves v. Industrial Claim Appeals Office, supra, is binding in this case. See People v. Roybal, 672 P.2d 1003 (Colo.App. 1983). It follows that the ALJ did not err in refusing to grant the respondent's request for a further hearing on the statute of limitations issue, or in precluding the statute of limitations defense from being raised on remand.

Contrary to the respondent's further contention, nothing in the ALJ's order suggests that he interpreted the court's order as requiring the matter to be "reopened as a matter of law." The court remanded the case "for further consideration of the claimant's petition to reopen," and the ALJ complied with that directive.

The respondent also contends that the ALJ failed to determine whether the claimant's worsened condition is causally related to the industrial injury. Therefore, the respondent contends the ALJ's findings of fact are insufficient to permit appellate review. We disagree. The ALJ explicitly found that the claimant's "work-related condition worsened," and that the subsequent need for surgery and temporary disability was due to the "worsened work-related condition." (Findings of Fact 3 4).

Further, the ALJ's findings are supported by substantial evidence in the record. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). The ALJ findings may be based on inferences from circumstantial evidence, see Ackerman v. Hilton's Mechanical Men, Inc., supra, and medical evidence is neither required nor dispositive. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent medical evidence is presented it is the ALJ's sole prerogative to assess the credibility and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).

Here, the claimant testified that he had a lot of pain in his neck and left upper extremity at the time of MMI and knew at the time the claim was settled that cervical surgery might be required in the future. (Tr. pp. 4, 12). Further, the claimant related his subsequent symptoms to the 1989 industrial injury. (Medical History form August 13, 1996).

In a report dated August 14, 1996, Dr. Chesley noted the claimant's 1989 industrial injury and indicated that the claimant had no other contributing medical history. Further, Dr. Chesley did not purport to attribute the claimant's symptomatology to any other cause. Similarly, Dr. Lindquist's clinic note of April 23, 1996, does not refer to any medical history except the 1989 injury.

Moreover, in her clinic note dated May 30, 1996, Dr. Harmann diagnosed the claimant as suffering from a cervical brachial syndrome from myofascial syndrome "related to the industrial injury." Based upon this evidence, the ALJ could reasonably infer that the claimant's ongoing symptoms are causally related to the original industrial injury, notwithstanding Dr. Stieg's opinion that the claimant's symptomatology is not clearly related to the 1989 injury. See Ackerman v. Hilton's Mechanical Men, Inc., supra. It follows that the ALJ's order must be upheld. Section 8-43-301(8), C.R.S. 1998.

IT IS THEREFORE ORDERED that the ALJ's order dated May 17, 1999, is affirmed.


____________________________________ Kathy E. Dean

____________________________________ Dona Halsey


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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.

Copies of this decision were mailed September 1, 1999 to the following parties:

Floyd Graves, 3117 13th St., Greeley, CO 80631

Public Service Company of Colorado, Attn: Pam Butler, P.O. Box 840, Denver, CO 80201-0840

Regina M. Walsh Adams, Esq., 1011 37th Ave. Ct., Ste. 201, Greeley, CO 80634 (For Claimant)

Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80203 (For Respondent)

BY: A. Pendroy