Opinion
W.C. No. 4-349-599
March 16, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which awarded permanent total disability benefits without apportionment. We affirm.
In 1997, the claimant suffered a compensable back injury. He was placed at maximum medical improvement April 9, 1998, and a Division-sponsored independent medical examination (IME) physician assigned a 20 percent whole person medical impairment rating. Another physician assigned a 4 percent mental impairment rating. The claimant also has a history of bladder cancer which is unrelated to the industrial injury and has required extensive treatment.
The claimant filed an Application for Hearing on the issues of permanent partial disability, permanent total disability and future medical benefits. Based on the evidence presented at a hearing on April 8, 1999, the ALJ found the claimant sustained his burden to prove permanent total disability. The ALJ also found the claimant suffered from transitional cell carcinoma which results in "significant restrictions" on the claimant's ability to work. Nevertheless, the ALJ found that the industrial injury is a "significant cause" of the claimant's inability to earn wages. Consequently, the ALJ ordered the respondents to pay permanent total disability benefits.
On review the respondents do not contest the ALJ's finding of permanent total disability. Instead, they contend the ALJ erroneously failed to apportion the permanent total disability award between the industrial injury and the pre-existing bladder cancer.
The claimant contends the respondents waived the issue of apportionment of permanent total disability benefits. We agree with the claimant and conclude that the respondents' argument was not preserved for appellate review.
To establish permanent total disability the claimant must prove that he is unable to earn any wages. § 8-40-201(16.5)(a), C.R.S. 1999. Furthermore, the claimant must prove that the industrial disability is a significant causative factor in his inability to earn wages. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
Under former § 8-42-104(2), C.R.S. 1998, which applies to this claim, [amended for injuries occurring on or after July 1, 1999], permanent total disability benefits are subject to apportionment if the claimant's inability to earn wages is attributable to both a "previous disability" and a subsequent industrial injury. See Absolute Employment Services, Inc. v. Industrial Claim Appeals Office,__ P.2d __(Colo.App. No. 98CA1200, September 16, 1999); Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). Because apportionment reduces the respondents' liability for permanent total disability benefits, it is an affirmative defense. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991).
An affirmative defense is considered waived if not explicitly plead. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). A waiver is the intentional relinquishment of a known right which may be express or implied. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Reese v. Cripple Creek Mountain Estates Country Club (Colo.App. No. 91CA0291, November 29, 1991) (not selected for publication) (statute of limitations defense waived where not endorsed at beginning of hearing). Although issues may be "tried by consent" if not properly raised by the pleadings, amendments to pleadings at the conclusion of a trial or hearing should not be permitted unless there is no reasonable doubt that the issue was intentionally and actually tried. Bill Dreiling Motor Co. v. Schultz, 168 Colo. 59, 450 P.2d 70 (Colo. 1969).
Here, apportionment of permanent total disability benefits was not affirmatively plead. The respondents' reply to the claimant's application for hearing did not endorse the issue of apportionment. It only disputed the IME physician's medical impairment rating. Neither does the record contain a motion or order adding the issue of apportionment.
At the commencement of the hearing the ALJ requested the parties to identify the disputed issues. Respondents' counsel argued that the IME physician's medical impairment incorrectly failed to apportion the claimant's permanent partial disability to the claimant's pre-existing, non-industrial medical problems. (Tr. p. 8). However, the respondents defended the claim for permanent total disability benefits on grounds that the industrial injury is not a causative factor in the claimant's permanent total disability and, therefore, the respondents' counsel argued that the claimant is not entitled to an award of permanent total disability benefits. (Tr. p. 7). Specifically, the respondents' counsel asserted that the evidence "is going to be that it is not the work-related injury that is preventing [the claimant] from returning to work but the other condition," resulting from the cancer that precludes the claimant from returning to work. (Tr. p. 453).
Similarly, at the conclusion of the hearing, the respondents' counsel argued that the claimant is entitled to federal Social Security disability benefits but not workers' compensation benefits for permanent total disability. (Tr. p. 73). Rather, he argued that the] "reason that [the claimant] can't work, and [the claimant's] need for ongoing treatment, all relate to his unfortunate situation with regard to his bladder cancer," and that the work related injury is "neither the cause of [the claimant's] need for ongoing disability, nor is it the reason he is unemployable. (Tr. p. 79). Therefore, the respondents' counsel requested an order denying the claim for permanent total disability benefits. (Tr. p. 74).
The respondents concede that the issue of apportionment was not affirmatively plead. However, they contend the issue was tried by consent. We disagree.
Admittedly, the record contains expert medical and vocational evidence that the claimant's bladder cancer impairs his employability. However, this evidence was pertinent to the respondents' contention that the industrial injury is not a significant causative factor in the claimant's permanent total disability. It also relates to the respondents' contention that the IME physician incorrectly rated the claimant's permanent medical impairment. Therefore, we cannot say the claimant's failure to object to the presentation of evidence that the claimant's bladder cancer is a causative factor in his permanent disability reflected his consent to litigate the issue of whether the respondents' liability for permanent total disability should be apportioned. Bill Dreiling Motor Co. v. Schultz, supra,; Graves v. Industrial Claim Appeals Office (Colo.App. No. 8CA0300, August 20, 1998) (not selected for publication) (brief and limited testimony on statute of limitations not consent to litigation of statute of limitations defense).
Our conclusion is buttressed by the ALJ's order, which does not identify "apportionment" of permanent total disability as an issue for adjudication. To the contrary, it is apparent from the ALJ's order that she considered the respondents to be arguing that there was no causal relationship between the industrial injury and the claimant's permanent total disability and, therefore, the claimant is precluded from receiving any permanent total disability benefits. ( See Findings of Fact 23, 24; Conclusions of Law 1); see also Richardson v. TBS, Inc., W.C. No. 4-194-359 (December 18, 1998). Consequently, we conclude the respondents waived the issue of apportionment of permanent total disability benefits under § 8-42-104. Compare Dennis v. Industrial Claim Appeals Office (Colo.App. No. 98CA1420, April 22, 1999) (not selected for publication) (issue of MMI not waived where endorsed on application for hearing, evidence submitted on issue and ALJ made findings on MMI).
We do not dispute that Seifried represents the ultimate test for apportionment of permanent total disability. This is true because if all of the "significant" causative factors of the claimant's inability to work are due to a previous disability, all of the claimant's permanent total disability is effectively apportioned to a non-compensable condition, and thus, the employer's liability for permanent total disability benefits is reduced to zero. However, we decline to conclude that inherent in the Seifried test is a request that the claimant be awarded permanent total disability benefits and that liability be apportioned between the industrial injury and a previous disability under § 8-42-104.
Moreover, this record does not compel a conclusion that the respondents asserted both arguments. Compare Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (estoppel argument preserved for review where substance of argument suggested estoppel even though correct legal term was not used). Rather it is equally plausible the respondents did not consider advancing the apportionment issue until receipt of the ALJ's order which rejected their theory that the claimant is not permanently totally disabled or if so, that the industrial injury is not a contributing factor to the disability. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (counsel may not take one position before ALJ and argue a contrary position on appeal). Because the apportionment issue was not raised before the ALJ, we shall not consider it for the first time on appeal.
Accordingly, we do not consider whether § 8-42-104 allows apportionment to a pre-existing nonindustrial condition. See United Airlines, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Sup.Ct. 98SC657, January 24, 2000). Even if proper, we conclude that the issue of apportionment of permanent total disability benefits under § 8-42-104 was waived.
IT IS THEREFORE ORDERED that the ALJ's order dated August 10, 1999, 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. 1999. 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 March 16, 2000 to the following parties:
Richard Bradford, 10571 Colorado Blvd., Unit E, #107, Northglenn, CO 80233
Jerry Baer, Nationsway Transport Service, Inc., P. O. Box 710, Denver, CO 80201
Nationsway Transport Service, Inc., 5601 Holly St., Commerce City, CO 80022
DeWayne Walker, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Robert A. Weinberger, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
John M. Connell Esq., 1675 Larimer St., #710, Denver, CO 80202
BY: A. Pendroy