Summary
In Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002), we discussed the meaning of the term "ripe for hearing" as distinguished from a "disputed issue."
Summary of this case from In re Olivas-Soto, W.C. NoOpinion
W.C. No. 4-421-748
November 1, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied the claimant's request to amend the average weekly wage (AWW). The claimant contends the ALJ erred in determining the issue of AWW was closed because the issue was "ripe" for determination and the claimant failed timely to request a hearing as required by § 8-43-203(2)(b)(II), C.R.S. 2002. We affirm.
The claimant sustained a compensable lower extremity injury in April 1999. On April 19, 2001, the respondents filed a Final Admission of Liability (FAL) which admitted for permanent partial disability benefits based on a scheduled impairment of the lower extremity, and an AWW of $360.
The claimant timely objected to the FAL and on April 25, 2001, filed an application for hearing listing the issues as permanent total disability, disfigurement, ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), and an offset issue. Following a hearing on August 3, 2001, the ALJ entered an order dated September 6, 2001. The order awarded permanent total disability benefits, disfigurement benefits, Grover medical benefits, and denied the offset sought by respondents. The order also contained the following clause: "All issues not determined herein are reserved for determination."
After the September 6 order the claimant examined old wage records from his employment and discovered the AWW admitted in the FAL did not include overtime wages. On October 30, 2001, claimant's counsel requested the respondents to amend the FAL to include the overtime wages in the AWW and pay additional benefits based on the revision. The respondents declined to do so and on November 27, 2001, the claimant applied for a hearing on the issue of AWW.
However, relying on § 8-43-203(2)(b)(II), the ALJ held the issue of AWW was closed by the claimant's failure to request a hearing on the issue within 30 days of the April 19, 2001, FAL. The ALJ reasoned the issue of AWW was "ripe, or in controversy" when the FAL was filed because the claimant requested permanent total disability benefits and calculation of such benefits is dependent on the AWW.
I.
On review the claimant contends an issue is not "ripe for hearing" until there is an "actual controversy between parties that is sufficiently immediate" to warrant adjudication. Here, the claimant argues the issue of AWW was not "ripe" until he discovered the check stubs showing the AWW was miscalculated and the respondents refused to correct the error. The respondents argue the issue of AWW was "ripe" because the AWW was "admitted" in the FAL, AWW forms the basis for payment of permanent total disability benefits, and the facts relevant to the correct AWW were available to the claimant in April 2001. We hold an issue is "ripe for hearing" if there is no legal impediment to adjudication of the issue and, therefore, conclude the ALJ correctly determined the issue of AWW was closed.
The pertinent provisions of § 8-43-203(2)(b)(II) provides as follow:
An admission of liability for the 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 admission in writing and request a hearing on any disputed issues that are ripe for hearing, including the selection of an independent medical examiner pursuant to section 8-42-107.2 if an independent medical examination has not already been conducted. (Emphasis added).
In determining the meaning of the phrase "any disputed issues that are ripe for a hearing," we apply the usual rules of statutory construction. The principal objective of statutory construction is to give effect to the legislative intent. To that end, words and phrases in a statute should be given their plain and ordinary meanings. However, if the meaning of a statute is unclear, legislative intent may be discerned through a variety of sources including consideration of the problem the statute was designed to solve and the consequences of various interpretations. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Further, we should strive to give the statute a consistent and harmonious reading in view of the entire statutory scheme. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
The phrase "ripe for hearing" is not defined by the statute. Neither do we perceive any "plain and ordinary meaning" of the phrase which may be discovered by resort to a dictionary. Cf. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000) ("recreational activity" has commonly accepted meaning easily discerned by resort to dictionary). Thus, we conclude the meaning of the phrase is uncertain and it is proper to resort to interpretive aids in determining the legislative intent.
The statutory language was adopted in 1998 as part of a comprehensive bill which established procedures and time limitations for the selection of a Division independent medical examination (DIME) physicians when a DIME is required to resolve disputes under the Act. 1998 Colo. Sess. Laws, ch. 313 at 1427 — 1432. Prior to the enactment of this legislation a claimant could file a timely objection to an FAL and the claim might remain open in perpetuity if the claimant did not seek a DIME or apply for a hearing. One obvious purpose of the 1998 legislation was to encourage prompt adjudication of issues requiring a DIME by establishing time limits for requesting the DIME. The simultaneous enactment of the requirement that the claimant request a hearing on issues "ripe for a hearing" indicates the General Assembly wished to encourage prompt adjudication of disputed issues "admitted" in the FAL, and to close claims where no dispute exists. See McCotter v. U.S. West Communications, W.C. No. 4-430-792 (March 15, 2001).
Moreover, as the General Assembly was presumably aware when it enacted the 1998 amendments to the statute that § 8-43-203(2)(b)(II) is "part of a statutory scheme designed to promote, encourage, and ensure the prompt payment of compensation to an injured worker without the necessity of a formal administrative determination of the employer's duty to provide benefits in cases that do not present a legitimate controversy." HLJ Management Group, Inc. v. Kim, 804 P.2d 250,252 (Colo.App. 1990); see also Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001). Consistent with that objective, the General Assembly apparently enacted the requirement to request a hearing on "ripe" issues so that litigation will end if the claimant raises no legitimate controversy with respect to issues admitted in the FAL.
It follows that, considering the apparent purposes of the statute, an issue is "ripe for hearing" if the issue is addressed in the FAL, and the legal prerequisites to adjudication of the issue (such as MMI and permanent impairment determinations) are complete. In our view it would be inconsistent with the statutory objective of closing cases where there is no legitimate controversy if the claimant could dictate "ripeness" by failing to investigate or conduct discovery on evidentiary matters underlying issues addressed in the FAL. Thus, the issue of "ripeness" concerns whether or not an issue is subject to adjudication under the statute, not whether a party is prepared to litigate the issue.
Further, this interpretation lends a consistent and harmonious reading to the entire statutory scheme. Section 8-43-211(2)(d), C.R.S. 2002, provides for the imposition of costs and attorney fees against a person requesting or setting a hearing "on issues which are not ripe for adjudication." The issue of "ripeness" under this statute was considered in BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). In BCW Enterprises an ALJ ordered a change of physician and the respondents appealed. During the pendency of the appeal the claimant applied for a hearing on the issue of penalties against the respondents because the appeal was allegedly taken in "bad faith" and was delaying the provision of necessary medical treatment. Ultimately, the Court of Appeals resolved the appeal in the respondents' favor. The respondents sought attorney fees and costs against claimant's counsel under § 8-43-211(2)(d) on grounds the issue of penalties for a bad faith appeal was not "ripe" until the appeal was determined.
The BCW Enterprises court held an appeal is not in bad faith if there is a reasonable basis for challenging the award, and that it would be illogical to impose sanctions for a bad faith appeal if the appellant is successful on appeal. Consequently, the court stated "a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination." Id. At 538.
Thus, BCW Enterprises stands for the proposition an issue is not "ripe for adjudication" if, under the statutory scheme, there is a legal impediment to its resolution. The legal impediment in BCW Enterprises was the prospect of inconsistent results if the penalty claim was considered "ripe" for adjudication during the pendency of the appeal. A harmonious application of the statutory scheme argues for a similar interpretation of ripeness as the term is used in § 8-43-203(2)(b)(II).
Indeed, we have used similar logic in a case involving the application of § 8-43-203(2)(b)(II). In Woods v. The Home Depot, W.C. No. 4-365-829 (September 27, 2001), the respondents argued the issue of the claimant's entitlement to particular Grover medical treatments was closed because the claimant did not apply for a hearing on the issue within thirty days of the FAL. However, in the Woods case, the respondents filed an FAL for unspecified future medical benefits under Grover. We held the claimant's request for specific Grover medical benefits was not ripe within thirty days of the FAL because the admission for Grover medical benefits was "general" in nature and the respondents retained the right to contest the reasonableness and necessity of particular treatments. Hence, there was a legal impediment to adjudication of the claim for specific Grover medical benefits until such time as the nature of particular treatments could be ascertained and the respondents were afforded an opportunity to dispute the reasonableness and necessity of the particular treatments. Put another way, at the time the FAL was issued it was not legally possible to adjudicate the reasonableness and necessity for future treatments because the nature of the treatments could not be predicted. Cf. Eddy v. Toby's Vacuum Truck Service, W.C. No. 3-113-338 (October 5, 2001).
Applying these principles here, we conclude the ALJ correctly ruled the issue of AWW wage was closed because the issue was "ripe for hearing" when the respondents filed the April 19 FAL, and the claimant did not file an application for hearing on the issue within thirty days. The April 19 admission admitted an AWW of $360. Further, as the ALJ recognized, an award of permanent total disability benefits is calculated based on the claimant's AWW. Section 8-42-111(1), C.R.S. 2002.
At the time the April 19 FAL was issued there was no legal impediment to adjudication of the claimant's AWW. Rather, the only impediment to adjudication cited by the claimant is the failure to do a factual investigation of the AWW issue which, presumably, would have revealed the error. As we have held, an issue is "ripe for hearing" when there is no legal impediment to the ALJ's resolution of the issue. The claimant's theory that an issue remains open until a party happens to discover evidence which would support a factual basis for challenging the FAL is contrary to the statutory objectives. Of course, the statute does allow reopening of a claim, in appropriate circumstances, based on a mistake of fact. Section 8-43-303, C.R.S. 2002.
In reaching this result we have considered authorities cited by the claimant including Lake Carriers' Association v. MacMullan, 406 U.S. 498 (1972), and Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). These cases generally discuss the "ripeness" concept as it applies to the imposition of declaratory judgments by courts of law. As stated in Abbott Laboratories, the rationale for this permutation of the ripeness concept is "to prevent the courts, through the avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."
We do not find these authorities particularly relevant in determining the meaning of ripeness as the concept is employed in § 8-43-203(2)(b)(II). The vast majority of disputes regarding final admissions involve real disputes between litigants and do not present the problem of premature, and potentially abstract, judicial interference with inchoate administrative policies. Thus, the concerns underlying the cases cited by the claimant are different than the issues addressed by the statute, and those cases do not persuade us to reach a different result.
It follows from this discussion that we disagree with the claimant's argument that the ALJ's findings of fact do not support her conclusion. Hence, we reject the claimant's fourth and fifth arguments for the reasons stated above.
II.
The claimant next contends that because the ALJ's September 6 order reserved issues for future determination the issue of AWW was not closed. We reject this argument.
Section 8-43-203(2)(b)(II) provides for closure of "issues" addressed in the FAL which are not contested in accordance with the statute. Dyrkopp v. Industrial Claim Appeals Office, supra. Once issues are closed they "may only be reopened pursuant to section 8-43-303." Section 8-43-203(2)(d), C.R.S. 2002; Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998).
Here, the issue of AWW was closed under § 8-43-203(2)(b)(II) and the ALJ was without power to reopen it except as provided under § 8-43-303. The reservation clause in the September 6 order served only to preserve for future determination those issues which otherwise remained open but were not addressed, or could not be addressed, in that order. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
For the same reason we reject the claimant's contention that the respondents' filing of additional FAL's on December 6, 2001, and March 14, 2002, and the claimant's objections to those admissions, had the effect of "preserving" the issue of AWW. The December 6 FAL merely reflected the payment of benefits pursuant to the ALJ's September 6 order and did not voluntarily reopen any issues, including AWW. Similarly, the March 14 order merely asserted a social security offset and did not purport to reopen any issue previously closed. Thus the AWW issue remained closed subject to reopening. Section 8-43-203(2)(d).
IT IS THEREFORE ORDERED that the ALJ's order dated April 10, 2002, 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _________November 1, 2002_ to the following parties:
Abraham Chavez, P. O. Box 425, Walsh, CO 81090
Cargill, Inc., P. O. Box 5624, Minneapolis, MN 55440-5624
Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Margaret Johnson, Crawford Company, 2850 McClelland Dr., #1600, Ft. Collins, CO 80525-2584
Darla Scranton Specht, Esq., 1204 E. Olive, P. O. Box 1500, Lamar, CO 81052 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado