Opinion
W.C. No. 4-690-754.
May 27, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 22, 2009, that granted partial summary judgment on the question whether certain disputed issues were closed. We affirm.
This order was entered resolving a motion for summary judgment and therefore no hearing was held. The respondents moved for summary judgment on the issue whether the issues of average weekly wage, permanent partial and permanent total disability benefits, and temporary disability were closed by the respondents' final admission. The claimant opposed summary judgment and the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on June 14, 2006, and on June 23, 2006 the claimant applied for a hearing on the issues of temporary total disability benefits and average weekly wage. The hearing was set for October 7, 2008. The claimant then attended a Division-sponsored independent medical examination (DIME), which reported that the claimant was at maximum medical improvement with 14 percent whole person impairment. On August 26, 2008 the respondents applied for a hearing on the issues of permanent partial disability benefits, average weekly wage, offsets, overpayments, and apportionment. The application for hearing stated that the setting date was September 10, 2008. On September 8, 2008, the claimant filed a response to the respondents' application for hearing, endorsing the issues of medical benefits, permanent partial disability benefits, and permanent total disability benefits.
On September 11, 2008, the respondents filed a final admission of liability that admitted for medical benefits, temporary total disability benefits through a certain date, permanent partial disability benefits based upon the authorized treating physician's whole person rating, at an average weekly wage of $270 until August 4, 2008, at which time it was reduced to $152.08. The final admission denied liability for permanent total disability benefits and took credit for an overpayment of temporary total disability benefits and for permanent disability benefits previously paid. On September 12, 2008 the respondents withdrew their August 26, 2008 application for hearing. However, the respondents sent their letter withdrawing the application to the incorrect office of OAC and it contained an incorrect W.C. number. The ALJ found that the application for hearing was "rejected" by OAC on September 24, 2008. The ALJ surmised that the reason was the failure of the party applying for a hearing to set it within five days of the setting date. A prehearing conference was conducted on September 25, 2008, at which the claimant withdrew his June 23, 2008 application for hearing. The prehearing ALJ directed OAC to vacate the October 7, 2008 hearing. The ALJ further found that the claimant did not file a written objection to the final admission within 30 days, nor did he file an application for hearing on any disputed issues. On October 21, 2008 the claimant filed an application for hearing on the issues of temporary disability benefits, permanent disability benefits, and average weekly wage. The ALJ found that the deadline for filing an objection to the final admission and an application for hearing was October 11, 2008.
Based upon his factual findings the ALJ concluded that the issues of temporary and permanent disability benefits and average weekly wage were closed by the final admission to which no objection was made. The claimant appeals and argues that he was not required to file an objection to the final admission and an application for hearing because a hearing was then pending pursuant to the respondents' application for hearing to overcome the DIME report. The claimant further argues that the respondents were not permitted by rule to withdraw their application and that, relatedly, the claimant's response to that application was the equivalent of an objection to the final admission and an application for hearing on the disputed issues. We are unpersuaded by this argument.
It is well-established that OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. 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). And 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. 2008, 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 partial summary judgment on the ground that the issues of the average weekly wage, temporary total disability benefits and permanent disability benefits were closed by the respondents' final admission and the claimant's failure to object and file an application for hearing within thirty days pursuant to § 8-43-203(2)(b)(II). We do not understand any party to be contending that there were disputed issues of fact to be resolved at a hearing. We conclude that the law supports the ALJ's order.
Section 8-43-203(2)(b)(II), C.R.S. 2008, provides as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.
Accordingly, the failure to file a written objection to a final admission and an application for hearing on the disputed issues within 30 days closes the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001). In this case, the insurer filed the final admission on September 11, 2008, and the claimant filed an application for hearing on October 21, 2008. We agree with the ALJ that the effect of the claimant's failure to file an objection and an application for hearing endorsing the claimant's average weekly wage was to close the claim with respect to those issues. See Olivas-Soto v. Industrial Claim Appeals Office, 143 P.3d 1178 (Colo.App. 2006); Leprino Foods v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo.App. 2005); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
One obvious purpose of the procedures set forth in § 8-43-203(2)(b)(II) is to provide the claimant with formal notice of the issues admitted and denied by the respondents, and the bases for those actions, and to permit the claimant to make an informed decision regarding whether to contest the final admission. The statute also provides a mechanism for notifying the claimant of the impending closure of his claim, subject to his right to object on specific disputed issues. Tenorio v. Poudre Valley Hospital, W.C. No. 4-162-954 (March 18, 1999). Here, the respondents' application for hearing and the claimant's response were both filed before the filing of the final admission. Although it is reasonable to surmise that the claimant's response to the application for hearing notified the respondents that the claimant disputed certain issues, those disputes existed prior to the respondents filing the final admission. We perceive no reason for assuming, especially as a matter of law as the claimant would have it, that those disputes must necessarily subsist after the filing of the final admission. Indeed, the purpose of procedures surrounding the filing of final admission (and objecting to them) is for the respondents to notify the claimant regarding admitted and denied issues and for the claimant to determine whether to permit the claim to close or to contest those issues. This latter function cannot be accomplished by the filing of a response to an application for hearing before the filing of the final admission.
When interpreting a statute we must seek to effectuate the legislative intent. To that end, we should give the words in the statute their plain and ordinary meanings unless the result is absurd. Further, we should read the statute so as to give consistent, sensible, and harmonious meaning to all its parts. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002); Moore v. Cobb Mechanical Contractors, W. C. No. 4-599-920 (April 12, 2006). Here, the plain meaning of the statute requires a claimant disputing any admitted issues to file a written objection and an application for hearing within thirty days of the date of the final admission. We decline to rule, as the claimant urges, that a dispute pending before the filing of the final admission must necessarily also exist after the final admission has been filed, and that evidence of that dispute (such as the response to the application) will necessarily be evidence that the dispute continues past the filing of the final admission.
It follows that we also disagree with the claimant's argument that OACRP Rule 15 provides relief for his failure to object to the final admission. The rule provides that "[a]fter a response to an application is filed, the application may not be withdrawn and the hearing may not be vacated except upon the agreement of all parties or upon the order of a judge." Here, the ALJ found that, although the respondents attempted to withdraw the application, they failed to do so properly and the application was stricken pursuant to OACRP Rule 8(K). That rule provides that "[i]f no written confirmation of the hearing is received by the OAC from a party within five days after the date of setting, the application shall be stricken without prejudice." We perceive nothing in Rule 15 that precludes the OAC from implementing Rule 8 by striking the application without prejudice because of the applicant's failure to set the hearing. Rule 8 also provides that either party may file another application on disputed issues and, as we understand the rules, a party who objects to "withdrawal" of the application under Rule 15 has the option of filing another application on the same issues if the previous application is stricken pursuant to Rule 8 because of the applicant's failure to set the hearing. However, in our view, none of these procedural rules relieves the claimant of his obligation to object to the final admission within the time period set forth in the statute. Accordingly, we perceive no basis on which to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued January 22, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
AUTO OWNERS INSURANCE COMPANY, Attn: RONDA KENDRICK, C/O: CRAWFORD CO, BOULDER, CO, (Insurer).
LAW OFFICE OF WILLIAM ALEXANDER, JR., PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
SLEVIN DOTSON, PC, Attn: CINDY SLEVIN, ESQ./SEAN DOTSON, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).