Opinion
W.C. No. 4-192-809.
November 9, 1999.
FINAL ORDER.
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ Felter), which reopened the claim and allowed the respondents to take a credit for previously paid permanent disability benefits. We modify the order, and as modified, affirm.
A brief procedural history is necessary to understand the issues on review. In 1993 the claimant sustained a work-related back injury and reached maximum medical improvement (MMI) on December 6, 1993. The respondents filed a Final Admission of Liability dated January 9, 1995, which provided for the payment of permanent partial disability benefits of $25,869.84. The claimant did not object to the Final Admission and subsequently received a lump sum award of permanent partial disability benefits.
The claimant's condition subsequently worsened and the respondents voluntarily reopened the claim. In a General Admission of Liability dated February 1, 1996, the respondents reinstated temporary disability benefits. In the "General Remarks" section of the February 1 admission, the respondents indicated that the previously paid permanent partial disability benefits "will be applied to any future permanent disability benefits."
The claimant reached MMI from the worsened condition on March 7, 1996. The respondents filed a Final Admission of Liability dated September 6, 1996, which admitted liability for permanent partial disability benefits of $36,568.90. However, the Final Admission did not explicitly claim an offset for the previously paid permanent disability benefits, or otherwise notify the claimant that the respondents intended to pay less than $36,568.90.
The claimant understood the 1996 Final Admission as an admission for permanent partial disability benefits of $36,568.90, in addition to all previously paid permanent partial benefits. Therefore, he did not object to the Final Admission. However, when the respondents paid permanent disability benefits of $10,699.06 (the difference between $36,568.90 and $25,869.84), the claimant petitioned to reopen the claim on the grounds of mistake, and requested an order requiring the respondents to pay benefits of $36,568.90. Alternatively, the claimant argued that the 1996 Final Admission was not a "valid" final admission because it did not advise him that the respondents intended to credit all previously paid permanent disability benefits against their liability for permanent partial disability benefits of $36,568.90.
In an order dated April 28, 1997, ALJ Wheelock rejected the claimant's challenges to the validity of the 1996 Final Admission, and determined that the absence of a timely filed objection automatically closed the claim. ALJ Wheelock found the respondents were entitled to offset previously paid permanent disability benefits regardless of whether the offset was specifically referenced in the final admission. ALJ Wheelock added that, to the extent there was an error or mistake, it was based upon the "claimant's confusion alone," which was not sufficient to warrant reopening the claim. Consequently, the ALJ denied the petition to reopen. The claimant timely appealed.
Relying on the statutory language currently codified at § 8-43-203(2)(b) (d), C.R.S. 1999, we concluded that where the respondents intend to claim an offset by the filing of a final admission of liability, the final admission must affirmatively identify the nature and amount of the offset, or the offset will be considered to have been waived and is not available to reduce admitted benefits. Further, we concluded that a general admission which notifies the claimant of the respondents' intent to claim an offset in a final admission is legally insufficient to assert the offset unless the final admission explicitly asserts the same. Consequently, in an order dated April 17, 1998, we held that the respondents are bound by the 1996 Final Admission and must pay permanent partial disability benefits without any offset for permanent partial disability benefits paid pursuant to their 1995 Final Admission. In so doing, we did not consider whether ALJ Wheelock erred in denying the claimant's petition to reopen. We also did not preclude the respondents from seeking to reopen the matter. The respondents timely appealed, and the Court of Appeals upheld our order in Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998).
In the interim, the claimant filed an application for lump sum payment of the permanent partial disability benefits provided by the 1996 Final Admission. However, the Director of the Division of Workers' Compensation (Director) denied the request pending resolution of a petition to reopen filed by the respondents on April 19, 1998. We affirmed the Director's order on December 22, 1998. No appeal was taken from the December order.
The respondents' April 19, 1998, petition to reopen alleged that their failure to assert the disputed credit was a mistake or error which justified reopening the claim. At the conclusion of a hearing on March 15, 1999, the ALJ granted the petition to reopen effective April 19, 1998. The ALJ entered Specific Findings of Fact on April 5, 1999. The ALJ determined it is undisputed the 1996 Final Admission was a mistake. Further, the ALJ determined that the filing of the 1996 Final Admission without reservation of a credit for previously paid permanent disability benefits was a mistake of law that warranted reopening the claim. Therefore, the ALJ allowed the respondents to amend the 1996 Final Admission to take credit for permanent partial disability benefits paid pursuant to the 1995 Final Admission. The claimant timely appealed.
I.
On appeal the claimant contends the respondents are equitably estopped from claiming the 1996 Final Admission was a "mistake" because he detrimentally relied on the respondents' Final Admission of Liability for $36,568.90. The claimant also contends that the respondents are bound by their "judicial admission" before ALJ Wheelock that there was no error or mistake in the Final Admission.
The doctrine of equitable estoppel and similar finality principles do not preclude a party from seeking to reopen the claim under § 8-43-303(1), C.R.S. 1996 [amended in 1997] of the Workers' Compensation Act. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). This is true because the reopening provisions indicate "a strong legislative policy to the effect that in workers' compensation cases the goal of achieving a just result overrides the interest of litigants achieving a final resolution of their dispute." Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985) (a final award in the context of workers' compensation means the matter is concluded unless reopened); Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). Indeed, the very purpose of the reopening provisions is to effect equitable adjustments in awards of benefits. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). In fact, the reopening statute allows the ALJ's reconsideration of the claimant's entitlement to benefits based upon a "mistaken or error" at the time the claim was closed. Consequently, § 8-43-303 expressly contemplates a party's assertion of a position inconsistent with the position taken before the claim is closed.
Furthermore, a "judicial admission" is a statement made in the context of a formal proceeding for the purpose of dispensing with proof concerning matters on which there is no real dispute. Kempter v. Hurd, 713 P.2d 1274 (Colo. 1986). At the hearing before ALJ Wheelock there was no admission by either party concerning the disputed issues and parties took opposite positions on the existence of a mistake. The claimant argued there was an error in the 1996 Final Admission insofar as it admitted liability for benefits of $36,568.90 and only $10,699.96 were paid. (Tr. April 14, 1997, pp. 9-11, 17). The respondents denied that the 1996 Final Admission admitted liability for additional benefits of $36,568.90. Rather, the respondents' asserted that because the general admission sufficiently advised the claimant of their intent to take a credit for previously paid permanent disability benefits, the $10,699.96 payment was correct. (Tr. April 14, 1997, p. 6). However, we subsequently concluded that the general admission was insufficient to notify the claimant of the respondents intent to assert the offset. Under these circumstances, we do not construe the respondents' position as a judicial admission that there was no mistake which warranted reopening the claim. Compare Austill v. Colorado Mental Health Institute, W.C. No. 4-207-213 (April 15, 1996) (insurer's concession that 50% of permanent total disability is due to industrial injury is admission that industrial injury is significant causative factor in permanent disability).
II.
Next, the claimant contends that if his "confusion" is legally insufficient to warrant reopening the claim, the respondents' "confusion" about the state of the law is also insufficient to reopen the claim. Therefore, the claimant argues ALJ Felter erred in reopening the claim.
To the extent the claimant now seeks review of ALJ Wheelock's order, we lack jurisdiction to review the order. The respondents did not appeal our order of April 17, 1998 order insofar as we affirmed ALJ Wheelock's order denying the claimant's petition to reopen, and the claimant did not cross appeal. Therefore, ALJ Wheelock's order is final and not subject to appeal. Section 8-43-301(10), C.R.S. 1999. Furthermore, the claimant did not file a new petition to reopen, and did not seek to reopen the claim at the hearing before ALJ Felter. Therefore, the claimant's argument is not properly before us on review. See Kuziel v. Pet Fair, Inc., supra.
Moreover, the ALJ has wide discretion to determine whether a mistake has occurred that justifies reopening the claim. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may interfere with ALJ Felter's order reopening the claim in the absence of a clear abuse of discretion. The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is not supported by the evidence or the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
We disagree with ALJ Felter's determination that our order established a new rule of law. To the contrary, our conclusions were based on sections 8-43-203(2)(b) (d), which provide that if liability is admitted, payments must be made in accordance with admitted liability and the admission must specify the amount and period for which compensation will be paid.
However, the claimant concedes that the filing of the 1996 Final Admission of Liability for $36,568.90, without asserting an offset for previously paid permanent disability benefits was a mistake. Under these circumstances, we cannot say ALJ Felter abused his discretion in determining that the potential overpayment of $25,869.84 constituted a mistake sufficient to justify reopening the claim.
III.
Nevertheless, the claimant contends ALJ Felter erred insofar as he relieved the respondents of liability for all permanent partial disability benefits beyond the $10,699.06 previously paid. We agree and therefore, we modify the order accordingly.
Under the applicable version of § 8-43-303(1), [significantly amended in 1997 for injuries occurring on or after July 1, 1997], an ALJ may reopen a claim and "diminish" compensation previously awarded as long as such reopening does not affect the earlier award "as to moneys already paid." In Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011, 1012 (1947), the court held that the prohibition against affecting "moneys already paid," means that the reopening of a claim may not include a finding that moneys previously paid to a claimant are no longer the property of the claimant and must be returned to the workers' compensation carrier. See also, Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (remedy for overpaid benefits due to retroactive offset is reduction of future benefits); Cody v. Industrial Claim Appeals Office, 940 P.2d 1042 (Colo.App. 1996).
Permanent partial disability benefits accrue at MMI. Nunnally v. Wal-Mart Stores, Inc., 943 P.2d. 26 (Colo.App. 1996). Rule IV(E), 7 Code Colo. Reg. 1101-3 at 5 provides that permanent disability benefits awarded by admission are due on the date of the admission and shall be paid every two weeks. The respondents' 1996 Final Admission admitted liability for the payment of permanent partial disability benefits at the rate of $227.49 per week commencing March 6, 1996, and continuing through April 5, 1999, for a total of 160 5/7 weeks. It follows that permanent partial disability benefits awarded by the 1996 Final Admission became due and payable at the rate of $227.49 per week effective March 6, 1996.
Admittedly, the respondents' were not obligated to pay benefits pending the resolution of their appeal from our order dated April 17, 1998. However, on November 13, 1998, the court of appeals upheld our order. The court concluded that the respondents are required to pay in accordance with their admitted liability and did not address the respondents' entitlement to reopen the claim. Mandate issued on February 1, 1999. Therefore, the court's order was final February 1, 1999. C.A.R. 41; Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo.App. 1994).
Section 8-43-401(2)(a), C.R.S. 1999, provides that:
"After all appeals have been exhausted or in cases where there have been no appeals, all insurers and self-insured employers shall pay benefits within thirty days of when any benefits are due."
Section 8-43-401(2)(a), does not provide any exception where the insurer has petitioned to reopen the claim, and we may not read a non-existent provision into the statute. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). It follows that pursuant to § 8-43-401(2)(a) the respondents were required within thirty days of February 1, 1999, or no later than March 3, 1999, to pay all permanent partial disability benefits which had became due and payable. The respondents were also required to pay any further benefits which became due and payable prior to March 15, 1999, when ALJ Felter orally relieved them of that liability. See Consolidated Landscape v. Industrial Claim Appeals Office, 883 P.2d 571 (Colo.App. 1994) (order not reviewable until reduced to writing, but order for change of physician effective on date of oral order).
In reaching our conclusion we reject the respondents' contention that ALJ Felter's order does not affect "moneys already paid" because they had not physically turned over to the claimant all permanent partial disability benefits which became due and payable between March 6, 1996 and March 15, 1999. As a legal matter, the respondents admitted liability for permanent partial disability benefits which became due and payable between March 6, 1996, and March 15, 1999. The admitted benefits were the legal property of the claimant and the respondents' refusal actually to pay out the money does not change the fact that the benefits constituted "moneys already paid."
The respondents construction of § 8-43-303(1) would vitiate the requirements of § 8-43-401(2)(a), and create an incentive to withhold benefits. We do not believe the General Assembly intended this result, and therefore, we adhere to our conclusion that benefits due and payable to the claimant prior to March 15, 1999, constituted "moneys already paid" for purposes of § 8-43-303. Accordingly, we modify the ALJ's order to provide that the respondents are only entitled to offset previously paid permanent partial disability benefits against permanent partial disability benefits due and payable effective March 15, 1999.
IV.
The claimant's further arguments have been considered and are without merit. On February 24, 1998, the claimant moved to add the issue of penalties. The respondents objected, and ALJ Felter denied the claimant's motion on March 9, 1999. ALJ Felter did not retract that order at the hearing on March 15, 1999. (Tr. p. 3). Thus, the penalty issue was implicitly reserved and not before ALJ Felter for adjudication. Consequently, the ALJ did not err in refusing to impose penalties for the respondents' failure to pay permanent partial disability benefits after the announcement of Cibola Construction v. Industrial Claim Appeals Office, supra.
We also note that the claimant did not appeal our order of December 22, 1998. Consequently, we lack jurisdiction to review the Director's order denying a lump sum payment.
IT IS THEREFORE ORDERED that the ALJ's order dated April 5, 1999, is modified to provide that the respondents are entitled to offset permanent partial disability benefits paid pursuant to the 1995 Final Admission of liability against all permanent partial disability benefits due and payable on or after March 15, 1999.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain
_____________________________ Kathy E. Dean
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, 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. 1999.
Copies of this decision were mailed November 9, 1999 to the following parties:
David D. Cash, 18440 Black Squirrel Rd., Black Forest, CO 80908.
Cibola Construction, Attn: Jack F. Buhl, P.O. Box 5611, Colorado Springs, CO 80931-5611.
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349, (For Claimant).
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority — Interagency Mail, (For Respondents).
Thomas Stern, Esq., 600 17th St., #1600 North, Denver, CO 80202
BY: A. Pendroy