Opinion
W.C. No. 4-410-271
May 22, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which imposed penalties for a violation of § 8-42-105(2)(c), C.R.S. 2002 and, the Rules of Procedure Part IX(C)(1), 7 Code Colo. Reg. 1101-3 at 34. We affirm.
Section 8-42-105(2)(c), provides that:
"If an employee fails to appear at an appointment with the employee's attending physician, the insurer or self-insured employer shall notify the employee by certified mail that temporary disability benefits may be suspended after the employee fails to appear at a rescheduled appointment. If the employee fails to appear at a rescheduled appointment the insurer or self- insured employer may, without a prior hearing, suspend payment of temporary disability benefits to the employee until the employee appears at a subsequent rescheduled appointment."
Similarly, Rule IX(C)(1)(e) states that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability accompanied by a copy of a certified letter to the claimant which advises the claimant that temporary disability benefits will be suspended for the failure to appear at a rescheduled medical appointment, and a statement from the authorized treating physician which documents the claimant's failure to appear at the rescheduled appointment.
Insofar as pertinent, the claimant suffered a compensable arm injury on January 1, 1999. On August 10, 2001, the respondents sent the claimant a certified letter (Respondents' Hearing Exhibit P), which alleged the claimant "failed to follow-up with the authorized treating physician." The letter notified the claimant of a "rescheduled appointment" for an MRI on August 24, 1999, and a "follow up visit" with Dr. Lins on August 30, 1999. The letter also notified the claimant that the respondents would suspend benefits in accordance with § 8-42-105(2)(c), if she failed to appear at the "rescheduled" appointment.
On September 16, 1999, the respondents filed a Final Admission of Liability terminating all benefits. The termination was based on the claimant's alleged failure to attend the appointments on August 24 and August 30.
The ALJ found the claimant appeared for the MRI test on August 24, but was unable to proceed with the test due to claustrophobia. Therefore, the ALJ determined the respondents erred insofar as they terminated benefits based on the claimant's failure to appear for the MRI.
In contrast, it is undisputed the claimant did not attend the August 30 appointment with Dr. Lins. However, the ALJ found the respondents failed to prove the claimant missed a prior appointment with Dr. Lins. Therefore, the ALJ determined the claimant's failure to attend the August 30 appointment did not establish grounds for the unilateral suspension of benefits under § 8-42-105(2)(c).
In any case, the ALJ found that the September 16 Final Admission did not comply with § 8-42-105(2)(c) because the respondents terminated all benefits without providing the required supporting documentation. Based on her further determination that the violations of Rule IX and § 8-42-105(2)(c) were not reasonable, the ALJ imposed penalties at the rate of $25 per day from September 16, 1999 to May 16, 2001. The ALJ also imposed penalties for the respondents' unilateral termination of temporary total disability benefits on June 21, 1999, in violation of Rule IX(1)(c)(d). The respondents timely appealed.
On review the respondents first contend the penalty claims are barred by § 8-43-304(5), C.R.S. 2002, which requires that a request for penalties be filed within 1 year after the date the requesting party first knew or reasonably should have known the facts giving rise to the possible penalty. The respondents contend the claimant knew about the alleged violations of Rule IX upon receipt of the June 21 and September 16 admissions. Because the claimant's November 15, 2000 application for hearing was more than 1 year later, they argue the penalty claims are barred.
The claimant contends the respondents waived this argument. We agree with the claimant.
In Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002), the court held that § 8-43-304(5) creates a statute of limitations for penalty claims under § 8-43-304(1), C.R.S. 2002. The statute of limitations is an affirmative defense to the respondents' liability for workers' compensation benefits. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). Further, an affirmative defense must be explicitly plead and is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See C.R.C.P. 8(c); Kersting v. Industrial Commission, supra; Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995).
Neither the respondents' response to the November 15, 2000 Application for Hearing on the issue of penalties, nor the respondents' May 25, 2001 Position Statement raised the statute of limitations defense. Similarly, at the commencement of the hearing the respondents' attorney did not argue the penalty claims are barred by the statute of limitations. We also note that the ALJ's order does not list the statute of limitations defense as an issue for adjudication. Under these circumstances, the record compels the conclusion the respondents' waived the defense. Moreover, the issue of statute of limitations may not be considered for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
Alternatively, the respondents contend their unilateral termination of temporary disability benefits on September 16 complied with § 8-42-105(2)(c). We disagree.
Contrary to the respondents' contention, neither their Hearing Exhibit P nor the medical records on file contain evidence the claimant failed to appear for a previous appointment with Dr. Lins. In the absence of evidence the claimant failed to attend a prior appointment with the attending physician, the ALJ correctly determined the claimant's failure to attend the August 30 appointment with Dr. Lins is insufficient to support the suspension of temporary disability benefits under § 8-42-105(2)(c).
IT IS THEREFORE ORDERED that the ALJ's order dated July 3, 2001, is affirmed.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 decision were mailed May 22, 2003 to the following parties:
Velia Rodriguez, P. O. Box 185, Holyoke, CO 80734
D D Farms, c/o Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202
Jackie Slade, Mid-Century Insurance Company, 7535 E. Hampden Ave., #200, Denver, CO 80231
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado