Opinion
W.C. No. 3-589-581
October 3, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which denied and dismissed his Petition to Reopen. We affirm.
The stipulated facts reveal that the claimant suffered a compensable knee injury on March 5, 1980. The claim was closed pursuant to the filing of an uncontested Special Admission dated September 25, 1981, which admitted liability for permanent partial disability benefits based upon thirty percent impairment of the lower extremity. No additional workers' compensation benefits were paid during the last ten years.
On February 16, 1995, the claimant filed a Petition to Reopen. The respondents refused to reopen the claim, and asserted that the claim was barred from reopening under the statute of limitations. A hearing was held, and the claimant argued that the parties were mutually mistaken in believing that the claimant reached maximum medical improvement in 1981.
In a "Final Order" dated March 7, 1996, and mailed March 9, 1996, the ALJ determined that the petition to reopen was governed by the statute of limitations in effect at the time of the claimant's injury. Specifically, the ALJ applied the 1979 version of § 8-53-119, C.R.S., which provided that a claim could be reopened due to a worsening of condition, within two years of the date the last payment of compensation was due and payable or "within six years from the date of the accident, whichever is longer." Consequently, the ALJ determined that the statute of limitations for reopening the claim had expired prior to the filing of the claimant's 1995 petition to reopen. The ALJ also rejected the claimant's argument that the statute of limitations was equitably tolled.
I.
Initially, we note that we lack jurisdiction to review the ALJ's order unless the claimant has filed a timely petition to review. Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Because the ALJ's "Final Order" was mailed March 9, 1996, the claimant was required to file a petition for review no later than March 29, 1996. Section 8-43-301(2), C.R.S. (1996 Cum. Supp.).
The record indicates that the "Claimant's Petition to Review" was not filed until April 8, 1996. However, correspondence dated April 6, 1996, from the ALJ to the claimant's counsel, indicates that the ALJ construed the claimant's March 19, 1996 pleading, entitled "Request for Specific Findings of Fact and Conclusions of Law," as a timely and sufficient petition for review. It is implicit in the March 19 pleading that the claimant disagreed with the ALJ's "Final Order," and in view of the fact that the ALJ did not issue a summary order, and the "Final Order" contains specific findings of fact, we cannot say that the ALJ's treatment of the March 19 pleading was incorrect. See Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980) (the substance of a document, and not its title, is determinative); Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970). Therefore, we uphold the ALJ's determination that the claimant filed a timely petition for review, and shall proceed to consider the claimant's substantive arguments. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
II.
The claimant first contends that the "present" version of the statute of limitations is applicable, and that under that version, the time for filing a petition to reopen has not expired. We agree that former § 8-53-119 does not govern this claim; however, the ALJ did not err in concluding that the claim is barred from reopening.
Section 8-53-119 was repealed and reenacted as § 8-53-113 in 1983. See Colo. Sess. Laws 1983, ch. 79 at 421. Thereafter, insofar as pertinent here, § 8-53-113 was amended in 1988. See Colo. Sess. Laws 1988, ch. 50 at 388. The 1988 version of the statute expressly applies to petitions to reopen filed on or after July 1, 1988 [§ 8-53-113 subsequently renumbered as § 8-43-303 at Colo. Sess. Laws 1990, ch. 62 at 509; amended 1991 Colo. Sess Laws, ch. 219 at 1323 concerning permanent total disability]. Because the claimant's petition to reopen was filed after 1988, the 1988 amendments are applicable. See Garrett v. Arrowhead Improvement Association, 826 P.2d 850 (Colo. 1992); Dwyer v. Barath Acoustics, Inc., W.C. No. 3-780-222, December 7, 1992.
Similar to former § 8-53-119, the 1988 amendment, permits the reopening of a claim due to a worsening of condition "at any time within six years from the date of injury," or within two years after the date the last medical, temporary disability or permanent disability benefit was paid. See § 8-43-303(1), C.R.S. (1996 Cum. Supp.). As determined by the ALJ, the claimant's petition to reopen was not filed within two years of the date the last medical, temporary or permanent disability benefit was paid, or within six years from the date of injury. Therefore, the ALJ's finding that the claim is barred from reopening is consistent with the applicable law, and supports the order. It follows that the ALJ's application of the 1979 statute was harmless error, and will be disregarded. Section 8-43-310, C.R.S. (1996 Cum. Supp.); Featherstone v. Loomix, Inc., 726 P.2d 246, 249 (Colo.App. 1986) (ALJ's order to be sustained if a proper interpretation of the law produces the same legal result as reached by the ALJ).
In reaching our conclusion, we recognize that § 8-43-303(1) also states that a "settlement may be reopened at any time on the ground of fraud or mutual mistake of a material fact." (Emphasis added). However, this provision pertains to a "settlement" entered into pursuant to § 8-43-204, C.R.S. (1996 Cum. Supp.). Neither § 8-43-204, nor its predecessor, § 8-53-105, was in effect at the time of the alleged settlement. Consequently, the alleged settlement could not have been entered into pursuant to § 8-43-204. However, even if the provisions of § 8-43-204 were applicable to this claim, that statute requires that the "settlement" be in writing, and contain the claimant's sworn signature.
Here, the claimant admitted that there was no signed settlement agreement, and that he simply picked up a check from the insurer after receiving the respondents' Final Admission of Liability. (Tr. pp. 24, 30). Accordingly, we reject the claimant's contention that this claim may be reopened "at any time" due to a mutual mistake of fact. Cf. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (to be recognized as a settlement for purposes of the Workers' Compensation Act, agreement must comply with requirements of the Act).
III.
Alternatively, the claimant contends that the ALJ erred in failing to find that the statute of limitations was equitably tolled. In support, the claimant contends that the respondents had an affirmative duty to notify him of his legal right to reopen the claim. He also asserts that he was unsophisticated, had inadequate legal representation and was "taken advantage of" by the respondents. We are not persuaded.
The doctrine of equitable tolling has been applied in workers' compensation claims where the claimant detrimentally relies upon a respondent's misrepresentation or failure to provide information that the respondent is legally obligated to disclose. Garrett v. Arrowhead Improvement Association, supra; Greeley Gas and Fuel Co. v. Thomas, 87 Colo. 486, 288 P. 1051 (1930); Failing v. Burkey's Lumber and Home Center, W.C. No. 3-047-159, September 22, 1993. In Garrett v. Arrowhead Improvement Association, supra, the insurer failed to provide a workers' compensation claimant with a physician's report detailing the worsening of the claimant's condition. Because the rules of procedure required the insurer to provide a copy of the report to the claimant, and the report was evidence which might support a petition to reopen the claim, the Garrett court determined that the insurer's failure to provide the report could be sufficient to toll the statute of limitations for filing a petition to reopen.
Here, the claimant does not allege that the respondents misrepresented any facts. Rather, the claimant concedes that the respondents made no statements concerning his legal rights. Further, unlike the circumstances in Garrett, the record fails to establish that the respondents had any legal obligation to inform the claimant of his right to reopen. Cf. § 8-43-203, C.R.S. (2)(b), C.R.S. (1996 Cum. Supp.) (concerning statements which must be included in a final admission). The claimant is presumed to understand his legal rights. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981).
In any case, the claimant admitted that he was represented by an attorney in the workers' compensation case, and we conclude that the advisement of his legal right to reopen the claim was a matter between the claimant and his attorney. (Tr. pp. 30, 36, 40). The claimant's assertion that he received inadequate legal representation does not otherwise create an affirmative duty on the part of the respondents to advise him of his legal rights, or afford grounds for relief under the doctrine of equitable estoppel. Therefore, we agree with the ALJ that the claimant has failed to sustain his burden of proof for relief under the doctrine of equitable tolling.
IT IS THEREFORE ORDERED that the ALJ's order dated March 7, 1996, 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. (1996 Cum. Supp.).
Copies of this decision were mailed October 3, 1996 to the following parties:
Mark Hereford, 3568 W. 89th Ave., Westminster, CO 80030
Vivian Durand, U.S. Insurance Group, Crum Forster Insurance, P.O. Box 5090, Denver, CO 80217
John G. Taussig, Jr., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Lynn Lyon, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________