Opinion
W.C. No. 4-191-303.
December 3, 2004.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) which reopened the claim and awarded additional workers' compensation benefits. The respondent contends the ALJ erroneously concluded the claim was not barred from reopening under the statute of limitations currently codified at § 8-43-303 C.R.S. 2004. We disagree, and therefore, affirm.
The claimant suffered a compensable injury in 1993. In June 1998, the claimant's request for a lump sum payment of permanent partial disability benefits was granted. In 1999 an ALJ denied the claimant's request for permanent total disability (PTD) benefits. The claimant filed a Petition to Reopen the claim based on a worsened condition in September 2002, and again requested an award of PTD benefits.
Section 8-43-303(1), and (2)(a), C.R.S. 2004, provide that a claim may be reopened within six years after the date of injury or within two years of the date the last temporary or permanent disability benefit has become due or payable on grounds of a change of condition. Because these statutes allow the respondent to avoid liability for additional benefits, the time limitations for reopening a claim constitute an affirmative defense. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
The ALJ determined the statute of limitations defense was never affirmatively plead. ( See Order Denying Respondent's Motion for Reconsideration or For Corrected Order August 18, 2004). Further, the ALJ determined the claimant proved a worsening of the industrial injury. Consequently, the ALJ reopened the claim. The ALJ also ordered the respondent to provide PTD and Grover-type medical benefits.
On review, the respondent disputes the ALJ's finding that the statute of limitations defense was not properly plead. To the contrary, the respondent argues the defense was effectively endorsed in its Response to the claimant's Application for Hearing on the Petition to Reopen. The respondent also contends that because the issue was briefed in its post-hearing position the claimant had adequate notice of the respondent's defense. We reject these arguments.
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). This principle protects the parties' due process rights to notice and an opportunity to be heard. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990); see also Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21 (a party may not add an "issue" after the filing of the application or response, "except on agreement of all parties, or approval of an administrative law judge for good cause shown").
The section of the respondent's Response to Application for Hearing entitled "OTHER ISSUES, AFFIRMATIVE DEFENSES, OR OFFSETS TO BE HEARD AT THIS HEARING," endorsed the issues of:
"Whether the claim for permanent total disability benefits is barred by the doctrines of law of the case, res judicata and/or collateral estoppel. Whether the Petition to Reopen has been properly filed." (Emphasis in original).
Regardless that parties are presumed to know the law, we agree with the ALJ that endorsement of whether the petition to reopen was "properly filed" does not necessarily notify the claimant that the respondent intends to assert a statute of limitations defense under § 8-43-303. This is especially true where the respondent explicitly stated that it was contesting the propriety of the petition to reopen on the grounds of res judicata and collateral estoppel.
Furthermore, at the commencement of the hearing on February 19, 2003, the respondent did not endorse the statute of limitations defense when the ALJ directed the respondent to clarify its position on the case. (Tr.pp. 8-10). Moreover, at the conclusion of the presentation of evidence on April 16, 2004, the ALJ summarized the issues. The respondent agreed with the ALJ's summary, which did not include a statute of limitations defense. (Tr. p. 121). Because the respondent never expressly endorsed the issue, the ALJ reasonably inferred that the statute of limitations was not sufficiently plead in the Response to Application for Hearing and the claimant was never adequately notified that the respondent intended to assert the claim was barred from reopening under § 8-43-303.
The respondent's reliance on our conclusions in Davis v. K-Mart, W.C. No. 4-493-641 (April 28, 2004), does not support a contrary result. In Davis we concluded that a claimant's Application for Hearing which expressly stated that the claimant sought penalties under § 8-43-304(1) for the respondent's failure to pay medical benefits on grounds of "no authorization" or "proof of visits," was sufficient to notify the respondent that the claimant was alleging a violation of Rule XVI(K). In Davis unlike the facts presented here, the claimant expressly alleged a violation of Rule XVI(K) at the commencement of the hearing and the respondent did not object, allege surprise, or request a continuance in response to the claimant's allegation of the Rule XVI(K) violation. Therefore, Davis is factually distinguishable.
The fact the respondent "briefed" the issue in its post-hearing position statement is also immaterial. Although the ALJ requested the parties submit written closing statements, we are unable to locate any evidence the ALJ authorized the parties to raise new issues or required the claimant to address issues first raised by the respondent in the closing statement. Consequently, the respondent's discussion of the statute of limitations in the post-hearing position statement did not raise the issue at a point in time which afforded the claimant an opportunity to present rebuttal evidence. Therefore, we reject the respondent's contention that the claimant "waived" objection to the statute of limitations defense by failing to object to the filing of the respondent's post-hearing position statement and conclude the ALJ did not err in failing to determine whether the claim was barred from reopening under § 8-43-303.
In view of our disposition we need not consider the respondent's specific arguments concerning application of the time limitations in § 8-43-303 to this claim.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Carron Work Rogers, San Antonio, TX, Charles DuScha, Risk Mgr., Adams County Colorado, Ave., Brighton, CO, Lissa Pierce, Adams County Risk Mgmt., Golden, CO, Regina M. Walsh Adams, Esq., Greeley, CO, (For Claimant).
Kathryn Kaeble Todd, Esq. T. Paul Krueger II, Esq., Denver, CO, (For Respondent).