Opinion
W.C. No. 3-936-811
February 3, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which dismissed and denied his petition to reopen. We affirm.
The claimant suffered compensable injuries on February 7, 1989. In 1990, the claimant entered into a full and final settlement of the claim, which was approved by the Division of Workers' Compensation. The settlement provided that the claimant "expressly reserves the right to reopen this matter in the future."
On May 12, 1996, the claimant petitioned to reopen the claim on grounds of a worsened condition. The matter came before the ALJ for hearing on January 21, 1997.
At the conclusion of the hearing, the respondent argued that the claim is barred from reopening under the statute of limitations in § 8-43-303(1), C.R.S. 1997. The claimant argued that the respondent waived litigation of the statute of limitations defense. However, the ALJ determined that the statute of limitations was jurisdictional and therefore, could not be waived.
The ALJ also determined that the petition to reopen was filed beyond the time limits provided by § 8-43-303(1). Consequently, the ALJ denied and dismissed the petition to reopen.
On review the claimant argues that the ALJ erroneously considered the respondent's argument concerning the statute of limitations. We disagree.
As argued by the claimant, the statute of limitations is not jurisdictional. Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394, 395 (1977). Rather, it is an affirmative defense which is waived if not timely raised. See C.R.C.P. 8(c); Kersting v. Industrial Commission, supra; Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); McPherson v. McPherson, 145 Colo. 170, 358 P.2d 478 (1960). Therefore, we agree with the claimant that the ALJ erroneously concluded that the statute of limitations defense cannot be waived. However, the ALJ's error was harmless, and thus, will be disregarded. See § 8-43-310 C.R.S. 1997; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
The defense of "waiver" may itself be waived. Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). For example, a party, by its conduct, may waive objection to consideration of an unendorsed issue by its conduct at the hearing. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Further, where there is no objection and both parties adduce evidence on the unendorsed issue, the issue is "tried by consent." Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976)
Here, the respondent did not explicitly raise the statute of limitations defense at the commencement of the hearing. However, during cross-examination, the respondent asked the claimant whether it was true that he waited "more than six years after" the date of the injury to file his petition to reopen. (Tr. p. 12). The claimant did not object to this question. Furthermore, on redirect, the claimant's attorney elicited the claimant's testimony that he believed the terms of the settlement allowed him to reopen his claim "at any point in the future." (Tr. p. 18). The claimant does not contend that this testimony is pertinent to any issue except the time limit in which the claimant could reopen his claim. See (Brief in Support of Petition to Review, October 28, 1997). Under these circumstances, we conclude that the claimant waived his objection to litigation of the statute of limitations defense. See Robbolino v. Fischer-White Contractors, supra. Instead, the claimant allowed the issue to be tried by consent. See Woodruff World Travel, Inc. v. Industrial Commission, supra; Cody v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950); Reeves v. Chet's Market Inc., W.C. No. 4-156-884 (July 18, 1997); Walton v. Beef City Inc., W.C. No. 4-234-788 (September 11, 1995).
It is true that, at the conclusion of the hearing, counsel for the claimant objected to the respondent's oral argument concerning the statute of limitations. However, this objection came too late since the claimant had already tacitly consented to litigation of the issue. See Trujillo v. City and County of Denver, W.C. No. 4-149-243 (June 19, 1996).
In addition, the claimant's reliance upon our conclusions in Dagley v. Nielsons, Inc., W.C. No. 3-059-965, (June 25, 1996), is misplaced. In Dagley, the statute of limitations defense was waived where it was not litigated before the ALJ, and was raised for the first time on appeal. Consequently, Dagley is factually distinguishable from the circumstances presented here.
The claimant's remaining arguments on this issue have been considered and do not alter our conclusions. Therefore, the ALJ did not err in considering the respondent's argument that the claim is barred by the statute of limitations.
Alternatively, the claimant contends that the plain and clear language of the settlement agreement does not restrict his right to reopen the claim to the time periods set forth in the reopening statute. Therefore, he argues that the ALJ erred in concluding that the petition to reopen was barred if not filed within the time period required by § 8-43-303(1). We perceive no error.
We do not dispute the claimant's assertion that the settlement agreement must be interpreted as a contract. See Resolution Truck Corp. v. Avon Center Holdings, Inc., 832 P.2d 1073 (Colo.App. 1992). However, the applicable part of the Colorado Workers' Compensation Act (Act) is an inherent part of any contract between an employer and an employee concerning the claimant's entitlement to workers' compensation benefits. University of Denver v. Industrial Commission, 138 Colo. 505, 335 P.2d 292, 294 (1959).
Furthermore, parties cannot by private contract abrogate statutory requirements or conditions affecting the public policy of the state. University of Denver v. Industrial Commission, 335 P.2d at 294; Pierce v. St. Vrain Valley School District, 944 P.2d 646 (Colo.App. 1997). This rule is not for the benefit of the party seeking to avoid its obligation under the contract, but rather, for the protection of the public. Id. at 649. Consequently, contract provisions which are contrary to public policy are void. Id. at 649.
Section 8-43-303(1) of the Act provides that an ALJ may reopen a claim within the time limitations provided therein. In Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985), the court held that claims resolved by settlement agreements are subject to the provisions of the reopening statute, and that a settlement agreement which purports to abrogate the requirements of the reopening statute is unenforceable. Id. at 279, 281.
It follows that insofar as the parties' settlement agreement may be construed to allow the claimant an unlimited amount of time to reopen the claim, that portion of the settlement is void and unenforceable. Consequently, the ALJ properly concluded that the claim could not be reopened unless if the petition to reopen was filed within the time provided by § 8-43-303(1).
Moreover, the claimant does not dispute the ALJ's finding that his petition to reopen which alleged a worsened condition, was filed more than six years from the date of injury and more than two years after the last payment of disability benefits. Therefore, the ALJ did not err in denying the petition to reopen.
IT IS THEREFORE ORDERED that the ALJ's order dated February 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona HalseyNOTICE
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. 1997.
Copies of this decision were mailed February 3, 1998 to the following parties:
Floyd Graves, 3117 13th St., Greeley, CO 80631
Pam Butler, Public Service Co., P.O. Box 840, Denver, CO 80201-0840
Regina M. Walsh Adams, Esq., 1122 9th Street, Suite 202, Greeley, CO 80631 (For the Claimant)
Michael Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: ________________________________