Opinion
No. 89CA1752
Decided March 28, 1991. Rehearing Denied April 25, 1991. Certiorari Granted August 26, 1991 (91SC276).
Certiorari Granted on the following issues: Does Department of Labor and Employment Rule XI(M), 7 Colde Colo. Reg. 1101-03, require that respondents disclose the existence of and provide to petitioner a medical report in respondents' possession from petitioner's treating physician showing a worsening of petitioner's physical condition if the respondents received the medical report within the period petitioner could reopen his claim? Should the reopening statute of limitations be tolled during the period that respondents failed to disclose the existence of and provide to petitioner a medical report in respondents' possession showing a worsening of petitioner's physical condition? Should this case be remanded for a further evidentiary hearing regarding the issues of prejudice to petitioner and reliance?
Review of Order from the Industrial Claim Appeals Office of the State of Colorado.
Withers, Seidman Rice, P.C., Charles E. Withers, for Petitioner.
Paul Tochtrop, for Respondents Arrowhead Improvement Association and State Compensation Insurance Authority.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Michael J. Steiner, First Assistant Attorney General, for Respondents Industrial Claim Appeals Office and Director, Division of Labor.
Petitioner, Gary M. Garrett, seeks review of an order of the Industrial Claim Appeals Office (Panel) denying his petition to reopen his workers' compensation claim on the ground that the petition was untimely filed. We affirm.
Claimant sustained an admitted industrial injury to his lower back in December 1980. In a final order dated June 7, 1985, he was awarded permanent partial disability in the amount of $12,046.94 payable at $84 a week commencing January 18, 1984. Respondents were also ordered to "pay for the necessary medical, surgical and hospital expenses as a result of this accident." The award did not, however, provide for future medical treatment. That award was not appealed. The final payment of permanent disability under this award was made on September 10, 1986.
On November 25, 1988, claimant, who in the interim had moved to California, filed a petition to reopen his claim asserting that his condition had worsened. Claimant requested additional disability benefits and medical benefits. At the hearing on the claim, an Administrative Law Judge (ALJ), ultimately found that the award of June 7, 1985, was a final award and therefore whether additional benefits could be awarded was governed by Colo. Sess. Laws 1988, ch. 50, § 8-53-113. That statute required a claimant to file a petition to reopen within two years of the last disability payment (here, by September 10, 1988), or in the case of medical benefits, within two years after the last such payment was due and payable.
The ALJ concluded that claimant was not entitled to additional disability benefits because his petition to reopen was filed on November 25, 1988.
As to claimant's additional request for medical benefits however, the ALJ found that respondents had authorized additional medical treatment for claimant in October of 1988 at the request of claimant's California physician, Dr. Da Silva. He thus concluded that for the purpose of awarding additional medical benefits under § 8-53-113(2)(b), claimant's petition to reopen was timely and should be granted. The portion of the ALJ's order awarding additional medical benefits was affirmed by the panel and has not been appealed.
On this review, the claimant contends that the respondents should be estopped from asserting the two-year statute of limitations or, in the alternative, that the two-year statute should be tolled so as to allow him to reopen his claim for additional disability benefits. We disagree.
The record supports the findings of the ALJ and the Panel that claimant's case was closed on June 7, 1985, see Gregory v. Crown Transportation, 776 P.2d 1163 (Colo.App. 1989), and that the June 1985 order did not require respondents to provide for claimant's future medical treatment. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Accordingly, the claimant had no basis for believing that he was entitled to additional medical diagnosis or treatment after June 1985. Nevertheless, we also agree that, by voluntarily authorizing additional medical treatment for claimant, respondents effectively extended the time within which claimant could file a petition to reopen for additional medical benefits until October of 1990. See § 8-53-113(2)(b).
However, we agree with the ALJ and Panel that a different result must be reached as to claimant's petition to reopen for additional disability benefits. The record reflects that respondents received an unsolicited copy of a medical report from Dr. Da Silva which was dated July 12, 1988, and which stated that claimant was experiencing increased pain and discomfort. Dr. Da Silva requested authorization from respondents to treat claimant and to perform some additional tests. In October of 1988, respondents authorized one of the treatments requested by Dr. Da Silva.
The record does, as asserted by claimant, reflect that, because of an administrative oversight by respondents, claimant was not sent or given a copy of Dr. Da Silva's report until January of 1989, when it was produced at the hearing on claimant's motion to reopen. Claimant thus contends that the respondents' failure to furnish him with a copy of Dr. Da Silva's report between July 1988 and January 1989 tolls the statute governing the time for filing his petition to reopen as to disability benefits and that therefore his petition filed in November 1988 was timely. We disagree.
Here, there is no evidence that the respondents authorized or requested Dr. Da Silva's July 1988 medical report, or that they intentionally withheld that report from claimant. Rather, it is apparent that nearly two years had elapsed after claimant's last disability payment when claimant sought treatment from Dr. Da Silva in California.
Further, there was no evidence presented that claimant delayed the filing of his petition to reopen because he was waiting for a written report from Dr. Da Silva. Nor is there evidence that, absent the report, claimant lacked a basis for asserting a change in his physical condition.
Therefore, while we agree that respondents had a duty to provide claimant with a copy of Dr. Da Silva's report, see Department of Labor Employment Rule XI(M), 7 Code Colo. Reg. 1101-3, we also agree with the conclusion of ALJ and the Panel that there is no basis here for tolling the two-year time requirement for reopening the issue of permanent disability, see § 8-53-113(2)(a), C.R.S. (1990 Cum. Supp.), and no basis from which to conclude that respondents should be estopped from asserting the two year statute of limitations as a defense. We find no error in the Panel's conclusion that since the claimant here failed to demonstrate prejudicial harm, the respondents' failure to provide claimant with a copy of his own physician's (Dr. Da Silva's) 1988 report, as required by the Industrial Commission Rules is harmless error. See § 8-53-122, C.R.S. (1986 Repl. Vol. 3B).
Claimant's final contention is that the case should be remanded to the ALJ for an evidentiary hearing and findings of fact on the question of whether claimant relied on the respondents to provide him with a copy of Dr. Da Silva's report.
This issue of reliance was not raised before the Panel and, thus, was not preserved for appellate review. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). Nevertheless, we note that the ALJ impliedly found that, since the respondents had no obligation to provide the claimant with additional medical benefits, claimant's asserted reliance, if any, on the respondents' obligation to provide Dr. Da Silva's report was neither justified nor detrimental. Thus, in effect, the ALJ did consider the reliance issue here and made an implied finding adversely to claimant on that issue.
The order is affirmed.
JUDGE ROTHENBERG concurs.
JUDGE DUBOFSKY dissents.