Opinion
W.C. Nos. 3-903-645 4-407-473
November 17, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ determined the claimant is barred from reopening W.C. No. 3-903-645 to obtain additional indemnity benefits. We reverse the contested portion of the order.
On May 23, 1988, the claimant suffered an injury arising out of and in the course of his employment for Manitou Pikes Peak Railway (Manitou). The Colorado Compensation Insurance Authority (CCIA) admitted liability. The claim was closed pursuant to the CCIA's filing of an uncontested Final Admission of Liability which terminated temporary disability benefits effective July 30, 1990, and admitted liability for permanent partial disability benefits from July 30, 1990, to November 28, 1994. The Final Admission did not admit liability for ongoing medical benefits to maintain maximum medical improvement or prevent a deterioration of the claimant's condition as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
In August 1992 the claimant filed a petition to reopen the claim due to a change of condition. In support, the claimant relied on an August 4, 1992, medical report of Dr. Higginbotham which recommended additional medical treatment. The claimant also applied for a hearing on the petition to reopen, and a hearing was scheduled for January 28, 1993.
Prior to the hearing, the claimant agreed to vacate the hearing in exchange for additional medical benefits. Thereafter, the CCIA paid additional medical benefits. The claimant subsequently changed attorneys.
In 1999 a dispute arose concerning whether the claimant's need for ongoing treatment was due to the 1988 injury or new injury which is the subject of W.C. No. 4-407-473. In May 1999, the claimant's new attorney filed an application for hearing in both claims on the issues of compensability, medical benefits, temporary disability benefits, average weekly wage, and petition to reopen. Manitou and CCIA (collectively the respondents) moved for summary judgment denying the petition to reopen. The respondents argued the 1992 petition to reopen was resolved and the statute of limitations for reopening the claim had expired.
Former § 8-43-303(1) (2) C.R.S. (1996 Cum. Supp.), which governs this claim [amended 1997 Colo. Sess. Laws, ch. 25 at 113, and applicable to injuries occurring on or after July 1, 1997] provides that a petition to review must be filed with 6 years of the date of injury or within 2 years of the date the last temporary or permanent disability benefits become due or payable. The filing of a petition to reopen with the Division of Labor within this time limit tolls the statute. See James v. Irrigation Motor and Pump Company, 180 Colo. 195, 503 P.2d 1025 (1972).
The ALJ determined that on January 15, 1993, the parties "reached a meeting of the minds" to resolve the 1992 petition to reopen. The ALJ found the parties agreed "the respondents would continue to provide Grover-type medical benefits by Dr. Higginbotham, but would not reopen the claim on the issue of indemnity benefits." The ALJ further found that the agreement was "mutually satisfactory with each party taking action and no longer requiring adjudication of the petition to reopen." Consequently, the ALJ rejected the claimant's argument that the 1992 petition to reopen was "still viable." Instead, the ALJ determined the claimant was required to file a new petition to reopen. Because the claimant had not filed a "new" petition to reopen, the ALJ determined the claimant was barred from reopening the claim on the issue of indemnity benefits. However, the ALJ ordered the respondents to pay Grover-type medical benefits in accordance with the 1993 agreement. The claimant timely appealed the ALJ's order.
On review the claimant contends the ALJ erroneously determined there was an "agreement" which resolved the 1992 petition to reopen and barred him from reopening the claim. We agree.
In determining that there was a "meeting of the minds" resulting in an agreement to "resolve" the 1992 petition to reopen, the ALJ expressly relied on correspondence received as Respondents' Exhibits J, K and L. We conclude the ALJ erred in finding that the correspondence evidenced an agreement to resolve the petition to reopen.
The ALJ effectively determined that the letters reflect a contractual agreement between the parties. The interpretation of a contract is a question of law. See Fibreglas Fabricators, Inc. v Kylberg, 799 P.2d 371, 374 (Colo. 1990). The general rules of contract interpretation provide that if the language used in the written instrument is plain, clear and no absurdity is involved, the contract must be enforced as written. Cary v. Chevron U.S.A. Inc., 867 P.2d 117 (Colo.App. 1993). However, where the parties ascribe different meanings to a material term of the contract and that term is ambiguous, the parties have not "manifested mutual assent" and there has been no "meeting of the minds." Consequently, no valid contract exists. Sunshine v. M.R. Mansfield Realty, Inc., 575 P.2d 847 (Colo. 1978); Real Equity Diversification Inc. v. Coville, 744 P.2d 756, 758 (Colo.App. 1987).
Exhibit J is a letter dated January 8, 1993, from a CCIA adjuster which stated that the CCIA "will not voluntarily re-open this case. However, [the CCIA] will pay medical bills under Grover."
Exhibit K is a letter from the claimant's former attorney to the claimant dated January 15, 1993, which, in pertinent part, stated:
"Colorado Compensation has agreed to reopen your case for the payment of medical bills. You can continue with Dr. Higginbotham and his prescribed treatment. The medical examinations, medical depositions, and the hearing scheduled on January 28, 1993 have been canceled."
Exhibit L is a letter from the respondents' former attorney to a CCIA adjuster. In pertinent part, the letter stated:
"It is my understand [sic] that Respondents have agreed to pay Claimant his medical bills under the Grover_decision. In addition, it is my understanding that we have agreed to allow Dr. Higginbotham to continue as the claimant's treating physician. Finally, it is my understanding that claimant's past medical bills that he has incurred will be paid for this latest injury.
Because of these agreements, claimant's attorney has agreed to vacate the hearing which was scheduled for January 28, 1993. I wrote opposing counsel and documented this agreement. Therefore, the hearing will now be vacated."
Contrary to the ALJ's order, the letters are ambiguous and do not reflect a "meeting of minds" concerning the status of the petition to reopen. Although Exhibits J and L contain the respondents' understanding that they agreed to pay "Grover" type medical benefits, Exhibit K does not reflect any similar understanding by the claimant's attorney. In fact, there is no language in Exhibit K which indicates the claimant agreed that further medical benefits were required to maintain MMI rather than reach MMI from the alleged "change of condition."
Admittedly, where a contractual term is ambiguous the ALJ may consider parol evidence to ascertain the intent of the parties. However, at hearing the parties presented no parol evidence concerning whether or not the medical benefits were payable under Grover. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel may not substitute for evidence which is not in the record).
More importantly, there is no language in any of the agreements that the parties agreed the claimant would withdraw the petition to reopen. Exhibit J contains no language concerning the anticipated effect of the respondents' agreement to provide additional medical treatment. Furthermore, Exhibit K and L refer to the parties' agreement to vacate the "hearing" that was scheduled for January 28, 1993. However, neither exhibit contains any language to suggest that the claimant agreed to withdraw the petition to reopen. Therefore, the record is legally insufficient to support the ALJ's finding that the parties entered into an agreement which was intended to dispose of the petition to reopen on a permanent basis.
In any case, even if there was an unambiguous agreement which resolved the 1992 petition to reopen we agree with the claimant that the agreement was not enforceable. Where a claim is closed pursuant to an uncontested Final Admission the claimant retains the right to reopen the claim and request additional benefits on the grounds of error, mistake or change of condition. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
Section 8-43-204(1) C.R.S. 2000 provides that "An injured employee may settle all or part of any claim for compensation, benefits, penalties , or interest." (Emphasis added). Subsection 8-43-204(2) states that the settlement "shall be in writing and shall be signed by a representative of the employer or insurer and signed and sworn to by the injured employee." Subsection 8-43-204(3) requires that settlement be approved in writing by an ALJ or the Director "prior to the finalization of such settlement."
All the statutory requirements set forth in § 8-43-204 must be satisfied prior to the time a settlement becomes legally enforceable. Cook v. McLister, 820 P.2d 1167 (Colo.App. 1991); City Market, Inc., v. Industrial Claim Appeals Office, 800 P.2d 1335 (Colo.App. 1990).
Here, the claimant allegedly agreed to settle his right to additional benefits based upon a change of condition. However, there is no evidence the parties' January 1993 "agreement" was reduced to writing and signed by the claimant. Neither is there any evidence or assertion the agreement was approved within the meaning of § 8-43-204(3). Consequently, the record compels the conclusion that any "agreement" to settle the claimant's petition to reopen was unenforceable. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Under these circumstances, the 1992 petition remained pending, and was sufficient to toll the 6 year statute of limitations in § 8-43-303. See Mascitelli v. Guilano Sons, 157 Colo. 240, 402 P.2d 192 (Colo. 1965). Consequently, the claimant was not required to file a new petition and the ALJ erroneously determined that the claimant was barred from litigating the petition to reopen.
In view of our disposition we need not address the claimant's alternative arguments. Therefore, we do not consider the claimant's contention that he was not bound by the 1993 agreement because the respondents failed to pay authorized medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated March 9, 2000, is reversed insofar as it determined the claimant is barred from reopening W.C. No. 3-903-645.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. 2000. 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 November 17, 2000 to the following parties:
David Westerman, 631 Hotchkiss, Lake City, CO 81235
Manitou Pikes Peak Railway, P. O. Box 351, Manitou Springs, CO 80829-0351
High Bridge Saloon, P. O. Box 1060, Lake City, CO 81235-1060
Legal Department, Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David Smith, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903 (For Respondents High Bridge Saloon and Colorado Compensation Insurance Authority)
BY: A. Pendroy