Opinion
W.C. No. 4-663-134.
December 20, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated July 23, 2007 that denied the claimant's claim for temporary disability benefits. We set aside the order and remand the matter for further proceedings.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable elbow injury in September 2005. The insurance adjuster for the respondents filed a Petition to Modify, Terminate or Suspend Compensation (Petition). The Director of the Division of Workers' Compensation (Director) in a letter dated May 4, 2006 stated that the Director was "approving the petition to modify, terminate, or suspend." The Director's letter also stated that all documentation and any response to the Petition had been reviewed. The letter further stated that the "carrier or employer" was authorized to take this action as of the date of the Petition. A copy of the Director's letter was sent to the claimant. The record contains no credible or persuasive evidence that the claimant petitioned to review the Director's letter. On May 22, 2006 the respondents filed a general admission of liability terminating the claimant's temporary disability benefits on April 7, 2006 (the date of the Petition).
I.
The claimant first contends that the ALJ erred as a matter of law by concluding that the Director's May 4, 2006 letter was an order capable of being appealed pursuant to § 8-40-201(15), C.R.S. 2007. The ALJ found that although the Director's May 4 ruling was in the form of a letter, it nevertheless constituted an "order because it contained the decision, direction and finding of the director with respect to the . . . petition." We agree with the ALJ.
The Colorado Supreme Court has held that the term "order" refers to "any decision, finding and award, direction, rule, regulation or other determination." Section 8-40-201(15), C.R.S. 2007; Holliday v. Bestop Inc. 23 P.3d 700 (Colo. 2001); Giddings v. Industrial Claim Appeals Office, 39 P.3d 1211 (Colo.App. 2001), cert. denied January 22, 2002; McDaniel v. Vail Associates Inc., W.C. No. 3-111-363 (August 1, 2002). In Holliday, the court held a Prehearing ALJ's notes on a conference summary sheet did not constitute an "order" because they did not resolve or determine any matter in the case. In contrast, here the May 4, 2006 letter did resolve a matter in the case. The order of the Director contained in a letter dated May 4, 2006 approved the Petition and allowed the carrier or employer to suspend, modify or terminate disability benefits as of the date of the Petition. See Jacquez v. Lilly Transfer Moving Company W.C. 3-948-524 (July 06, 1990) (letter by the Director invalidating the termination of benefits and requiring payment of benefits was sufficient to fall within the purview of § 8-43-301(2)). In our view the Director's letter was an order as defined in § 8-40-201(15) and as interpreted in Holliday. See Hart v. Hart, W.C. 3-585-089 (August 19, 1991).
The ALJ found, and the claimant does not contest, that there was no appeal of the Director's order. Section 8-43-301(2) C.R.S. 2007 provides that an order is final unless the dissatisfied party files a petition for review within twenty days. The statutory time limits governing appellate review of workers' compensation decisions are jurisdictional. Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, 24 P.3d 1 (Colo.App. 2000). Thus, absent the filing of a timely petition to review, the Panel lacks jurisdiction to review the order. See Brodeur v. Industrial Claim Appeals Office, 159 P.3d 810, (Colo.App. 2007); Schneider Nat'l Carriers, Inc. v. Industrial Claim Appeals Office, 969 P.2d 817 (Colo.App. 1998); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
The claimant argues that the Director lacked "jurisdiction" to issue the order citing evidence that suggests that the claimant in fact had filed a timely objection to the Petition. It is provided in W.C. Rule of Procedure 6-4(C), 7 Code Colo Reg. 1101-3 at 23, that if the claimant does not file an objection to a petition to suspend benefits within twenty days of the date of mailing of the petition and response form, the Director may grant the insurer's request to suspend, modify or terminate disability benefits as of the date of the petition. However, as noted by the ALJ, where jurisdiction depends upon a factual condition, the existence of which must be found by the tribunal, and the tribunal finds, in an adversary proceeding, that the condition exists, the determination is not subject to collateral attack, even though it might have been reversible on appeal. State Compensation Ins. Fund v. Luna, 156 Colo. 106, 397 P.2d 231 (1964). Therefore, since no appeal was taken of the Director's order it became final and we have no authority to consider the claimant's arguments concerning the validity of the Director's order.
II.
The claimant next contends he was denied due process by not being given an opportunity to litigate his entitlement to temporary disability benefits after April 7, 2006. We again disagree.
The claimant cites Lobato v. Industrial Claim Appeals Office, 105 P.3d 220, 226-28 (Colo. 2005). In Lobato the supreme court determined that the relevant statutes were ambiguous and because the claimant was not accurately notified of time period for objecting to a final admission of liability, time limits for requesting a Division-sponsored independent medical examination did not apply. In contrast, the courts of Colorado have consistently found that the procedural requirements contained in § 8-43-301 are unambiguously mandatory. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 24 P.3d 1 (Colo.App. 2000); Schneider Nat'l Carriers, Inc. v. Industrial Claim Appeals Office, 969 P.2d 817 (Colo.App. 1998); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Any unfairness that may result from the statutory limitation is a matter that can only be addressed by the General Assembly. See Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, supra; Digital Equip. Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995) (appellate court is not at liberty to read nonexistent terms into the plain language of the statute).
The Director's order must be considered final insofar as it suspended temporary benefits to the claimant. See Wallace v. Industrial Commission, 629 P.2d 1091 (Colo.App. 1981). See also, Salazar v. Hi-Land Potato Co., 917 P.2d 326 (Colo.App. 1996) (order treated as final which suspend payment of medical impairment benefits for the weeks the claimant was incarcerated). Despite the claimant's contention that the Director's order did not contain a notice advising him of his appeal rights, the requirement of a timely petition to review is nonetheless, mandatory. See § 8-43-301 C.R.S. 2007; Wallace v. Industrial Commission, supra.; McKay v. M E Prehung Door, W.C. 3-890-325 (November 17, 1989).
III.
The claimant finally contends that the ALJ erred, as a matter of law, by concluding that since the claimant's temporary disability benefits were properly suspended on April 7, 2006, it was not necessary to determine the other issues, including the claimant's entitlement to temporary disability benefits at any time after April 7, 2006. The ALJ determined that the claimant's right to receive temporary benefits was suspended by the Director and the claim had never been reopened. The claimant contends that the ALJ erred by assuming the order of the Director operates as a permanent bar to any future temporary benefits.
We recognize that a claim may be closed by a "final award" resulting from an admission or order after a contested hearing, and an "award" includes an order that grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). Thus, unless an award of benefits expressly reserves other issues for future determination, the "award" closes the claim and requires the parties to satisfy the reopening requirements of § 8-43-303, C.R.S. 2007, before litigation of any further issues. Hanna v. Print Expediters Inc. 77 P.3d 863 (Colo.App. 2003). See also, Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780, 784 (Colo.App. 1991) (order that denied temporary disability benefits, but contained express reservation of jurisdiction over the subject of permanent disability, did not close the claim; however, absent express reservation, order would "normally" have been considered an award requiring a reopening prior to granting any other benefits). Brown Root supports the conclusion that, unless the Director's or an ALJ's award of benefits expressly reserves other issues for future determination, the "award" closes the claim and subjects the parties to the reopening requirements prior to litigation of any further issues. Weis v. Litton Data, W. C. No. 4-248-731 (October 11, 2000). See also, D. Cain, The Colorado Lawyer, Brown Root: When an ALJ's Order is an "Award," September 1993, Vol. 22, No. 9 p. 1927.
The issues before the Director were framed by the respondents' Petition to modify average weekly wage and suspend temporary disability benefits. The Director's order approved the respondents'"petition to modify, terminate, or suspend." The Director's order does not contain a clause expressly reserving other issues for future determination. However, in our opinion under the circumstances of this case it does not follow that the claimant's failure to seek appellate review of the Director's order resulted in the order becoming a "final award," which closed the claim. Consequently, in our opinion, the ALJ erred in determining that because the right of the claimant to receive temporary benefits was "suspended" by the Director and because the Director's order had not been reopened, the claimant could not proceed on the application for hearing before the ALJ.
Here the ALJ found the claimant's right to receive temporary benefits was "suspended" by the Director. The Petition filed by the respondents sought permission to suspend payment of compensation because the claimant had been unable to work scheduled light duty shifts since the claimant's work at his wife's bakery interfered with his work schedule. The respondents desired to suspend benefits "until concurrent wages can be identified" and were concerned that there was a possible overpayment on the claim. Exhibits 2 8.
The ALJ found that the Director's order "suspended" temporary disability benefits. The ALJ did not find that the Director's order "terminated" temporary disability benefits. In our view, given the fact that the respondents had only requested to "suspend" benefits, the ALJ's interpretation of the Director's order is reasonable.
The legal authority in the Petition listed, inter alia, § 8-42-106, which deals in part with termination of temporary partial disability payments in the event that the claimant fails to respond to an offer of modified employment. The Petition also lists Rule of Procedure 6-4 as authority and the Director suspended benefits pursuant to that rule. Rule of Procedure 6-4 generally provides that if the claimant files a timely objection to a petition the respondent shall continue temporary disability benefits until the matter is resolved by an order following a hearing. If a claimant does not timely file an objection the Director, as we must assume was the case here, the Director may grant the respondent's request to suspend as of the date of the Petition.
We recognize that the term "suspend" has received various treatment by the courts. As the court noted in Sigala v. Industrial Claim Appeals Office, 159 P.3d 785, 787 (Colo.App. 2006), cert. granted (May 29, 2007). The term "suspend," as used in the Workers' Compensation Act, is fairly susceptible of different interpretations. See, e.g., Magnetic Eng'g, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (as used in the first sentence of § 8-43-404(3), "suspended" connotes a postponement, that is, the payments are temporarily held in abeyance); Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987) (authorizing, under a predecessor statute to § 8-43-404(3), a "permanent suspension" of benefits based on claimant's failure to cooperate with established vocational rehabilitation plan); Dziewior v. Michigan Gen. Corp., 672 P.2d 1026 (Colo.App. 1983) (in the context of the last sentence of what is now § 8-43-404(3), "suspend" means the cessation of payments for a period of time with the expectation of reinstatement after removal of a disqualifying condition). In Sigala the court found that the term "suspend" as used in § 8-42-105(2)(c) contemplates a forfeiture of temporary total disability benefits for the period of suspension.
Here the Director only suspended the temporary disability benefits rather then terminating them. The respondents filed a general admission of liability following the Director's order rather than a final admission of liability terminating the claimant's temporary partial disability benefits as of the date of the Petition to suspend. Under these circumstances, we do not presume that the Director intended to close the claim on the issue of temporary disability benefits and as a result, there was no need to file a petition to reopen.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 2007 is set aside, and the matter is remanded for additional findings and a new determination of the claimant's entitlement to temporary disability benefits, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
TROY CORDELL, HESPERUS, CO, (Claimant).
ALBERTSONS, Attn: KATINA WOOD, BOISE, ID, (Employer).
ALBERTSONS/SPECIALTY RISK SERVICES, Attn: MELISSA ADAMS, SALT LAKE CITY, UT, (Insurer).
DAWES AND HARRISS, P.C., Attn: GAIL C. HARRISS, ESQ., DURANGO, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, P.C., Attn: MARK DUMM, DENVER, XC, (For Respondents).