Opinion
W.C. No. 4-478-614
April 12, 2004
FINAL ORDER
The respondent seeks review of orders of Administrative Law Judge Muramoto (ALJ Muramoto) and Administrative Law Judge Felter (ALJ Felter) which awarded permanent partial disability (PPD) benefits. We affirm.
On November 30, 2001, the respondent filed a Final Admission of Liability (FAL) which admitted liability for zero PPD benefits based on the findings of the Division-sponsored independent medical examination (DIME) physician. The claimant timely objected and filed an Application for Hearing on the issue of PPD. The Application stated that the claimant would call to set the hearing on January 8, 2002. However, the claimant's counsel withdrew and the setting did not occur on January 8. A hearing was subsequently scheduled for May 7, 2003.
The respondent moved to dismiss the Application for Hearing due to lack of jurisdiction. In an order dated January 16, 2003, ALJ Muramoto determined the claimant complied with the substantive requirements of § 8-43-203(II)(b), C.R.S. 2003, and that the failure to set the hearing on January 8 was a technical not jurisdictional defect. Therefore, ALJ Muramoto refused to dismiss the Application for Hearing.
The respondent timely appealed the order of ALJ Muramoto. On June 19, 2003, we determined ALJ Muramoto's order was interlocutory and, therefore, we dismissed the appeal without prejudice.
The matter was subsequently heard by ALJ Felter on the issue of PPD benefits. ALJ Felter found the claimant overcame the DIME physician's rating and awarded benefits based on 17 percent whole person impairment.
I.
On review the respondent contends ALJ Muramoto erroneously determined the claimant's failure to set a hearing on all disputed issues within 30 days of the receipt of the FAL did not deprive ALJ Felter of subject matter jurisdiction on the issue of PPD. We disagree.
Subject matter jurisdiction refers to the power of a court to consider and determine the type of case with which it is presented. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). A court will lack subject matter jurisdiction when an action is not timely filed pursuant to the deadlines established in a nonclaim statute, which shall include language indicating that the filing of the claim is either a condition to the claim itself or that the failure to file will deprive the court of jurisdiction over the claim. Public Service Co., v. Barnhill, 690 P.2d 1248, 1252 (Colo. 1984); Western Empire Constructors, Inc. v. Industrial Claim Appeals Office, 769 P.2d 1089 (Colo.App. 1989); Cornstuble v. Industrial Commission, 722 P.2d 448 (Colo.App. 1986). In contrast, unless the statute otherwise provides, the service of notice and other aspects of perfecting an application for hearing or an appeal are procedural, not jurisdictional requirements. Newman v. McKinley Oil Field Service, 696 P.2d 238 (Colo. 1984); Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994); Colorado Department of Institutions v. Industrial Claim Appeals Office, 780 P.2d 72 (Colo.App. 1989). Consequently, once subject matter is properly invoked, a court is not deprived of jurisdiction by the failure to comply with a procedural requirement. See People v. Grell, 950 P.2d 660 (Colo.App. 1997).
Section 8-43-203(2)(b)(II), C.R.S. 2003, provides that issues admitted in a FAL are automatically closed unless the claimant contests the FAL in writing and requests a hearing on any disputed issues that are ripe for hearing within thirty days of the date of the FAL. The statute also provides that the phrase "request a hearing" refers to the filing of a written application for hearing. Consequently, we have held that the timely filing of an objection and Application for Hearing are jurisdictional prerequisites to a hearing on PPD benefits. See Peregoy v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0557, January 29, 2004); Perales v. Napier, W.C. No. 4-516-705 (December 12, 2003).
The respondent concedes § 8-43-203(2)(b)(II) doesn't address the time period for filing a Notice to Set a formal hearing. Nevertheless, the respondent argues that requiring the claimant to file a Notice to Set within 30 days of the FAL leads to a consistent and harmonious reading of the entire statute. However, we may not read nonexistent provisions into the statute. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Furthermore, we recognize that the Rules of Procedure, Part VIII(B), Code Colo. Reg. 1101-3 (2002), require that a Notice to Set be mailed at least 10 days, but not more than 20 days before the setting date. However, the rule also reflects a determination by the Director of the Division of Workers' Compensation that the filing of an Application for hearing is separate and distinct from the duty to file a Notice to Set because the rule provides that the Notice to Set shall be "accompanied" by a completed Application for Hearing form.
Here, the record supports the finding of ALJ Muramoto that the claimant complied with § 8-43-203(2)(II)(b). It follows that ALJ Felter acquired subject matter jurisdiction to hear the claimant's request for PPD benefits regardless of the claimant's failure to complete the setting on January 8. Colorado Auto Body Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (Colo. 1966); see also Poyner v. Philip Services South Central Inc., W.C. No. 4-425-162 (March 31, 2004).
Moreover, § 8-43-207(1)(I), C.R.S. 2003, authorizes the ALJ to grant a reasonable extension of time for the taking of any action upon written motion and for good cause shown. Here, ALJ Muramoto explicitly found the claimant established good cause for failing to set the hearing on January 8. The respondent's arguments notwithstanding, the finding of ALJ Muramoto is supported by substantial evidence in the record. Therefore, we cannot say ALJ Muramoto abused her discretion by allowed the claimant to set the matter for hearing after January 8. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986) (order based on exercise of discretion may not be set aside in the absence of an abuse of discretion).
Finally, we reject the respondent's contention that construing § 8-43-203(2)(b)(II) to require the claimant to set the hearing within 30 days of the FAL is necessary to prevent the claimant from delaying litigation of the issue of PPD. As the respondent acknowledges, it could have set the issue for hearing or moved to dismiss for lack of prosecution if the claimant unreasonably failed to set the matter for a hearing. See § 8-43-207(1)(n), C.R.S. 2003; Romero v. Gerald Martin, Ltd., W.C. No. 4-455-142 (March 8, 2004); Kratzer v. Hillhaven Corp., W.C. No. 4-280-513 (December 4, 2003) (upholding dismissal for failure to prosecute based, in part, on claimant's failure to reschedule a DIME which was canceled). Thus, the respondent has remedies other than the proposed construction of § 8-43-203(2)(b)(II).
II.
The respondent's Petition to Review also asserts general allegations of error to challenge ALJ Felter's award of PPD benefits. However, the Brief in Support of the Petition contains no specific arguments in support of the respondent's contentions. Consequently, the effectiveness of our review is limited.
PPD benefits are payable where the claimant suffers an injury arising out of and in the course of employment which causes permanent medical impairment. Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). Under § 8-42-107(8)(c), C.R.S. 2003, the DIME physician's finding of medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The determination of whether the DIME physician's rating has been overcome is a factual issue reserved to the ALJ, and we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Metro Moving Storage Co. v. Gussert, supra. Application of the substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
The respondent's arguments notwithstanding the pertinent findings of ALJ Felter are supported by substantial evidence in the record and the opinions of Dr. Wunder. Further, the findings support the award of PPD benefits. Consequently, the respondent has failed to establish grounds which afford us a basis to set aside the award of PPD benefits.
IT IS THEREFORE ORDERED that the ALJs' orders dated January 16, 2003 and June 2, 2003 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. SocolofskyNOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 12, 2004 by A. Hurtado.
Del Carmen Ramirez, 1020 37th St., Evans, CO 80620
CON AGRA Beef Company, P. O. Box G, Greeley, CO 80632
Von Eschen, Sedgwick CMS, P. O. Box 540010, Omaha, NE 68154
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Kim D. Starr, Esq. and T. Paul Krueger, II, Esq., 2629 Redwing Rd., #330, Fort Collins, O 80526 (For Respondent)