Opinion
W.C. No. 4-709-876.
July 11, 2011.
FINAL ORDER
The claimant, George Nichols, seeks review of an order of Administrative Law Judge (ALJ) Stuber dated March 2, 2011, that granted summary judgment for the Travelers Indemnity Company's (Travelers). Consequently, the ALJ denied and dismissed the claimant's claims for dependent death benefits against Travelers. We affirm.
Travelers filed a motion for summary judgment dismissing any claims by the claimant against it. The ALJ granted the motion for summary judgment and in so doing made certain findings of fact. In his order the ALJ discussed orders issued by other ALJs and the liability of other parties such as the employer and another insurance carrier. However, in the paragraphs below we confine ourselves to only the pertinent findings of fact relevant to Travelers' motion for summary judgment and set forth only the facts found by the ALJ to be undisputed.
On April 16, 1993, Wanda Nichols (the decedent) suffered an admitted industrial injury while employed by Avon Products, Inc. (employer). At the time of the industrial injury, Lumbermen's Mutual Casualty Company (Lumbermen's) was the insurer for the employer. Lumbermen's is not a party to the claim here. The decedent never returned to work for the employer following the industrial injury. Lumbermen's filed a Final Admission of Liability (FAL) for permanent total disability benefits in the decedent's claim bearing W.C. No. 4-174-355.
On February 10, 2005, Lumbermen's filed a FAL that asserted that no further benefits were owed because the decedent had died. On January 9, 2007, the claimant, as widower of the decedent, filed a separate dependent's claim for death benefits. That claim was assigned WC No. 4-709-876 and is the claim which is the subject of the present order. The claimant asserts that the decedent's death was due to medications she was taking for her chronic pain complaints associated with the injuries sustained in the 1993 industrial injury. Therefore, the claimant asserts that he is entitled to dependent death benefits.
Travelers provided workers' compensation coverage to the employer at the time of the decedent's death in 2005. Travelers did not insure the employer at the time of the decedent's 1993 industrial injury. Further, the decedent never worked for the employer during a time when the employer was insured by Travelers for workers' compensation benefits. Travelers never provided any workers' compensation benefits to or on behalf of the decedent. Lumbermen's paid workers' compensation benefits to the decedent until her death in 2005.
The ALJ determined that Travelers was not liable to the claimant under any possible theory for dependent death benefits. The ALJ noted that even under the doctrine of "quasi course of employment," Lumbermen's remained liable for any injuries or death suffered in the course of authorized medical treatment for the work injury. Further, the ALJ noted that Travelers was not liable as the insurer "on the risk" as that concept involves occupational disease exposure, and none of the pleadings make the allegation that the decedent suffered from an occupational disease. The ALJ determined that even if it was assumed that the decedent suffered an occupational disease, Travelers was never "on the risk" for decedent's need for medical treatment. The ALJ found that decedent never worked for the employer while insured by Travelers and therefore the need for medical treatment for any occupational disease was not caused by the decedent's work for the employer while insured by Travelers. Consequently, the ALJ denied the claimant's claims against Travelers.
The Office of Administrative Courts' Rule of Procedure (OACRP) Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See OACRP 17, 1 Code Colo. Reg. 104-3. 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). We note that 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). 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). However, pursuant to § 8-43-301(8), C.R.S., 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 Travelers is not liable for death benefits involving a worker who was not injured nor even worked for the insured employer during a period of coverage provided for by Travelers.
We do not understand the claimant to be contending that there were disputed issues of fact involving the motion for summary judgment. Although the claimant has not filed a brief in support of his petition to review, we note that in his answer to the summary judgment motion (filed late after the case was transmitted to this office), he conceded that that facts set forth in paragraphs 1-20 accurately described the relevant facts. We further note that the employer filed a response agreeing with the insurer's position. Therefore we conclude, as the ALJ did, that the facts set forth in paragraphs 1-20 of the motion for summary judgment are undisputed. We further conclude that the law supports the ALJ's order.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
In light of the undisputed facts of this case, we agree with the ALJ that Travelers is not liable to the claimant under any possible theory of dependent death benefits. If the industrial injury was not an occupational disease then the insurer on the risk at the time of the accident occurred was liable. See Great Am. Indem. Co. v. State Compensation Ins. Fund 108 Colo. 323, 116 P.2d 919 (Colo. 1941). Here, it is undisputed that Travelers did not insure the employer at the time of the 1993 industrial injury. Therefore, Travelers has no liability involving an accidental injury to the claimant.
On the other hand, if the industrial injury was an occupational disease there simply was no injurious exposure to the worker after Travelers became the insurer for the employer because the claimant never worked for the employer during any time when Travelers provided coverage. See Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986); Ventker v. Royal Gorge Flower Farms W.C. Nos. 3-808-415 3-902-828 (December 9, 1992). Consequently, we are not persuaded to interfere with the ALJ's granting of summary judgment in favor of Travelers.
IT IS THEREFORE ORDERED that the ALJ's order dated March 2, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Baird
_______________________ Dona Rhodes
WANDA NICHOLS (DECEASED) GEORGE NICHOLS, COLORADO SPRINGS, CO, (Claimant).
AVON PRODUCTS, INC., Attn: TIMOTHY M. GILMAN, ESQ., NEW YORK, NY, (Employer).
THE TRAVELERS INDEMNITY COMPANY, Attn: DIANE GUTIERREZ, DENVER, CO, (Insurer).
FREDERICK W. NEWALL, ATTORNEY, Attn: FREDERICK W. NEWALL, ESQ., COLORADO SPRINGS, CO, (For Claimant).
HALL EVANS, LLC, Attn: FRANK M. CAVANAUGH, ESQ., DENVER, CO, (For Respondents).
RAY LEGO ASSOCIATES, Attn: JONATHAN S. ROBBINS, ESQ., GREENWOOD VILLAGE, CO, (Other Party).
AVON PRODUCTS, INC., Attn: JEANMARIE DIGIACOMO, MIDLAND AND PECK AVENUES, RYE, NY, (Other Party 2).