Opinion
W.C. No. 4-713-658.
October 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated May 6, 2008, that granted the respondents' motion for summary judgment, ruling that the issue of average weekly wage was closed and striking a hearing on that issue. We affirm.
The order under review here was entered on a motion for summary judgment and therefore no hearing was held. The claimant filed an application for hearing endorsing the issue of average weekly wage. The respondents then sought summary judgment on that issue, contending that the issue was closed by operation of the respondents' final admission of liability. The ALJ entered an order granting the respondents' motion for partial summary judgment and striking the hearing. The ALJ found that certain facts were undisputed, including that the claimant had sustained a compensable injury on September 12, 2006, and that on October 30, 2007, the respondents had filed a final admission of liability admitting for an average weekly wage of $742.00. On November 13, 2007, the claimant's attorney sent a letter to the insurer's claims adjuster acknowledging receipt of the final admission and asserting that the claimant was entitled to a higher average weekly wage. It was also undisputed that on November 29, 2007, the claimant filed a written objection to the final admission. However, no application for hearing on any issue was filed within thirty days of October 30, 2007. The claimant filed an application for hearing on the issue of average weekly wage on February 13, 2008. (We note that the ALJ's order states that the application for hearing was filed on February 13, 2007. However, it appears undisputed by the parties that the application was filed in 2008 and that the date in the ALJ's order is merely a typographical error.)
Based upon the undisputed facts, the ALJ concluded that the issue of the claimant's average weekly wage was closed by the claimant's failure to file an application for hearing on the issue within thirty days. The ALJ therefore granted the respondents' motion for summary judgment and struck the hearing that was then pending.
The claimant appealed the ALJ's order and makes several arguments. Specifically, the claimant argues that the issue of her average weekly wage was not ripe at the time she filed her written objection to the final admission and that, in this regard, there was then no actual controversy concerning that issue, and the parties had not by that time attempted to resolve the issue so as to make it ripe for litigation. The claimant also argues that the Division of Workers' Compensation (the Division) is not authorized to automatically close a claim following the filing of an objection to a final admission but prior to the filing of an application for hearing. The claimant further contends that to permit the Division to do so violates the principle that the purposes of the Workers' Compensation Act are "remedial and beneficent." The claimant also argues that § 8-43-203(2)(b)(II), C.R.S. 2008 is "defective" and does not authorize the Division to close a claim under the circumstances of this case and that, in any event, the final admission of liability could not close the claim because it did not "contain the exact words mandated" by the statutory section. We have considered the claimant's arguments and we are unpersuaded that the ALJ erred.
Summary judgment is an available procedure in a workers' compensation proceeding. The Office of Administrative Courts has promulgated a procedural rule authorizing summary judgment in workers' compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See AC. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). Pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is generally whether applicable law supports the ALJ's grant of summary judgment on the ground that the issue of average weekly wage was closed by the respondents' final admission and the claimant's failure to file an application for hearing within thirty days pursuant to § 8-43-203(2)(b)(II). We conclude that it does.
We perceive no error in the ALJ's conclusion that the issue of the claimant's average weekly wage was closed by the respondents' final admission.
Section 8-43-203(2)(b)(II), C.R.S. 2008, provides as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.
Accordingly, the failure to file a written objection to a final admission and an application for hearing on the disputed issues within 30 days closes the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001). In this case, the insurer filed the final admission on October 30, 2007, and the claimant objected either by letter to the claims adjuster on November 13, 2007 or by written objection on November 29, 2007. No application for hearing, however, was filed until February 2008. We agree with the ALJ that the effect of the claimant's failure to file an application for hearing endorsing the claimant's average weekly wage was to close the claim with respect to those issues. See Olivas-Soto v. Industrial Claim Appeals Office, 143 P.3d 1178 (Colo.App. 2006); Leprino Foods v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo.App. 2005); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
Further, we reject the claimant's specific arguments concerning the effect in this case of § 8-43-203(2)(b)(II). When interpreting a statute we must seek to effectuate the legislative intent. To that end, we should give the words in the statute their plain and ordinary meanings unless the result is absurd. Further, we should read the statute so as to give consistent, sensible, and harmonious meaning to all its parts. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002); Moore v. Cobb Mechanical Contractors, W. C. No. 4-599-920 (April 12, 2006). Here, the plain meaning of the statute requires a claimant disputing any admitted issues to file a written objection "and" an application for hearing within thirty days of the date of the final admission. Regardless of the admittedly "remedial" nature of the Workers' Compensation Act, we must construe the statute according to the plain meaning of the words used by the legislature in enacting it.
Finally, we reject the claimant's argument that the issue of her average weekly wage was not "ripe for hearing" within thirty days of the filing of the final admission. It may be, as the claimant asserts, that she was continuing to attempt to resolve the disputed issue of her average weekly wage, or that she had not then exhausted all avenues for amicable settlement of the dispute. However, we agree with the ALJ that these circumstances did not render the issue of average weekly wage premature for resolution at a hearing or otherwise not ripe to be litigated. In Olivas-Soto v. Industrial Claim Appeals Office 143 P.3d 1178 (Colo.App. 2006) the court noted that generally ripeness tests whether an issue is real, immediate, and fit for adjudication. Under that doctrine, adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury, which may never occur. In Olivas-Soto, the court agreed with the Panel that the issue of permanent total disability benefits was legally ripe for adjudication when claimant filed his first application for hearing. The final admission of liability and the subsequent Division-sponsored independent medical examination (DIME) in Olivas-Soto removed any legal impediment to a determination of his eligibility for permanent total disability benefits, despite that the claimant was merely attempting at that time to overcome the DIME. In this regard we note that the Panel in Olivas-Soto had defined the the term "ripe for hearing" as a disputed issue concerning which there is no legal impediment to immediate adjudication. Olivas-Soto v. Genesis Consolidated Services, W. C. No. 4-518-876 (November 02, 2005).
Here, notwithstanding that the claimant may have been continuing to resolve the dispute over the average weekly wage, at the time the respondents finally admitted to a particular wage the dispute was "real, immediate, and fit for adjudication." The claimant therefore was under a statutory duty to file an application for hearing on that issue within the time prescribed by § 8-43-203(2)(b)(II). Her failure to do so closed the issue subject to the reopening provisions of the Act.
IT IS THEREFORE ORDERED that the ALJ's order issued May 6, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
JENNIFER MACKAY, COLORADO SPRINGS, CO, (Claimant).
CLINTAS CORPORATION, Attn: CHRIS MAES, DENVER, CO, 80239 (Employer).
XL SPECIALTY INSURANCE, Attn: TERI ESS-JACOBS, C/O: CAMBRIDGE INTEGRATED SERVICES GROUP, INC., PHOENIX, AZ, (Insurer).
THE LAW OFFICE OF DAVID R CALVERT, Attn: DAVID R CALVERT, ESQ, ENGLEWOOD, CO, (For Claimant).
MCCREA BUCK, LLC, Attn: JAMES B BUCK, ESQ, DENVER, CO, 80203 (For Respondents).