Opinion
W.C. No. 4-018-727
February 2, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which denied and dismissed her Petition to Reopen. We affirm.
In July 1990, the claimant suffered an occupational disease from injurious noise exposure, which resulted in a permanent hearing loss. The respondent provided a hearing aid and paid for the repairs until July 1991, when it filed a Final Admission of Liability. The claimant did not timely object and the claim was closed.
The claimant filed petitions to reopen in 1993 and 1994 on grounds of a "worsening of physical condition." The petitions were denied December 20, 1994, based upon an ALJ's determination that the claimant failed to prove a worsening of the occupational disease. The order was ultimately affirmed by the Court of Appeals in August 1996, and the Supreme Court denied a petition for writ of certiorari in April 1997.
On June 14, 1996, the claimant filed another Petition to Reopen alleging a change in physical condition. In September 1997, the claimant filed an Application for Hearing on the Petition to Reopen, stating the issue to be decided was "Petition to Reopen due to mistake, error or change in condition. . . ." The matter was scheduled for hearing on April 7, 1998.
On February 26, 1998, the claimant moved to amend the Petition to Reopen to include the grounds of "mistake or error." Expressly relying on Moore v. Grossman, 824 P.2d 7 (Colo.App. 1991), the ALJ denied the motion because it was filed after the six-year statute of limitations had run. Similarly, the ALJ determined that the application for hearing filed in September 1997 did not have the effect of amending the Petition to Reopen because the application was also filed after statute of limitations had run. Further, the ALJ concluded that the proposed amendment did not "relate back" to the June 1996 Petition to Reopen under C.R.C.P. 15 (c), because the claims of error or mistake do not arise out of the same occurrence as change of condition. Consequently, the ALJ concluded that the allegations of mistake or error were barred by the statute of limitations. (Summary Order issued May 23, 1998).
The ALJ also rejected the claimant's allegation that her hearing aids have caused a worsening of her physical condition. The ALJ determined that evidence of technological advancements in hearing aids does not support the finding of a change in condition sufficient to reopen the claim. The ALJ also determined that new hearing aids may improve functioning, but do not improve anatomical hearing loss. Therefore, the ALJ denied the Petition to Reopen.
I.
First, the claimant contests the ALJ's determination that the petition to reopen on the grounds of "mistake or error" is barred by the statute of limitations. Citing Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986), the claimant argues that the statute of limitations was tolled until the Supreme Court resolved her appeal of the December 1994 order denying the prior petition to reopen. We disagree.
Section 8-43-303(1), C.R.S. 1998, provides that an ALJ may reopen a claim on the grounds of change in condition, error or mistake, where the claimant has petitioned to reopen the claim within six years of the date of injury. A "change of condition" refers to a change in the claimant's physical condition. Ward v. Ward, 928 P.2d 739 (Colo.App. 1996). A "mistake or error" refers to a mistake of fact or law which warrants reopening the case. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996).
In Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986), the claimant sustained a 1978 back injury, and in 1983, filed a claim which alleged a new back injury. In late 1994, the claim was denied based upon a finding that the claimant's condition was due to "a previous injury or injuries." On review, the court determined that the findings were insufficient to support the denial of benefits. The court further determined that, even though the time for filing a petition to reopen the 1978 injury claim had expired, the claimant was not barred from petitioning to reopen the 1978 claim. The court held that because the claimant filed a new claim within six years of the 1978 injury, and the necessity and propriety of filing a petition to reopen the 1978 claim could not be determined until resolution of the 1983 claim, the statute of limitations was tolled until a final resolution of the 1983 claim.
Here, the claimant argues that the propriety of filing a new petition to reopen remained unresolved until final resolution of her appeal. Therefore, the claimant contends that the statute of limitations for filing a petition to reopen on the grounds of mistake or error was tolled until the final resolution of her appeal of the December 1994 order. We are not persuaded.
Admittedly, a court decision reversing the denial of the prior petition to reopen would have eliminated the claimant's need to file a new petition to reopen. However, unlike the facts in Valdez, the claimant did not wait for a final resolution of the appeal before filing a new petition to reopen. Rather, to preserve her rights to reopen the claim, the claimant filed the June 1996 petition to reopen while the appeal on the prior petition was still pending.
The tolling of a statute of limitations is an equitable remedy to be applied where flexibility is required to accomplish the goals of justice. Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 (Colo. 1996). The remedy has been applied in cases where the actions of an adverse party prevented the timely filing of claims, or where extraordinary circumstances make it impossible for a party to file a claim within the statutory time period. Dean Witter Reynolds, Inc. v. Hartman, supra. In Valdez, the court applied the remedy because the delay in the hearing officer's decision prevented the claimant from knowing whether it was necessary and proper to file a petition to reopen, an action which would have been inconsistent with the claimant's contention that he had suffered a new injury.
Here, however, where the claimant filed the June 1996 petition to reopen while the appeal was pending, we perceive no basis for applying this equitable remedy. Although the claimant may have been prevented from knowing whether another petition to reopen was necessary, she did not fail to file a petition to reopen during the pendency of her appeal. Further, unlike in Valdez, where the legal propriety of a petition to reopen was dependent on a factual finding to be made by the ALJ, the petition to reopen filed in June 1996 was simply advancing a new legal theory based on the existing facts. We fail to see how the grounds of error or mistake were somehow more inappropriate to allege during the pendency of the appeal, than was the claim of change of condition. Under these circumstances, we conclude that Valdez is distinguishable, and that justice and fairness do not dictate a tolling of the statute of limitations here. Accordingly, we conclude that the ALJ did not err in failing to find that the statute of limitations was tolled under Valdez.
The claimant also asserts that the failure to allege an "error or mistake" in the June 1996 Petition to Reopen was a "technical irregularity" which was cured by notifying the respondent of the additional allegations in the September 1997 application for hearing. In support of this argument, the claimant relies on Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984), which held that a petition to reopen containing the necessary information was sufficient to operate as notice of a new claim for benefits. However, in that case, the claimant's petition to reopen was filed within the statutory time period, and the court's holding is expressly conditioned on the timeliness of the petition. The issue in this case is not whether an application for hearing is an acceptable form for amending a petition to reopen. Rather, the issue was whether the amendment, in whatever form, was filed within the statutory time period. Intermountain Rubber Industries does not address this issue.
The claimant contends the ALJ erred in failing to find under C.R.C.P. 15(c), that the amended petition to reopen relates back to the June 1996 petition to reopen. Again we disagree.
C.R.C.P. 15(c) states that:
"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew of should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."
For purposes of addressing the claimant's argument, we assume that C.R.C.P. 15, which contemplates that leave to amend a complaint will be freely given, is not inconsistent with Part VIII(A)(5) or Part X(B) of the Workers' Compensation Rules of Procedure, 7 Code Colo. Reg. 1101-3. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (Rules of Civil Procedure may not be applied to worker's compensation proceedings where those rules are inconsistent with workers' compensation statute); Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986) (ALJ has discretion to deny a petition to reopen that does not strictly comply with prescribed requirements). Part VIII(A)(5) provides that a party may not add an issue after the filing of the application or response except upon agreement of all parties, or approval of an administrative law judge for good cause shown. Further, Part X(B) imposes specific requirements to be included in a petition to reopen.
The ALJ found that the application for hearing does not relate back because the claims of error or mistake do not arise out of the same occurrence as change of condition. We are not persuaded that the claims arise out of separate occurrences. See Varner v. District Court for the Fourth Judicial District, 618 P.2d 1388 (Colo. 1980) (fact that a proposed amendment sets forth alternate theories of recovery does not justify withholding permission to amend, especially where theories are rooted in the same transaction underlying original complaint). In our view, the claimant was attempting to plead alternate theories of recovery that arise out of the same occurrence.
Moreover, we believe that Moore v. Grossman, supra, was erroneously relied upon by the ALJ. That case involved a motion to amend the complaint to add a party. The motion was filed before the statute of limitations had run, but the trial court did not rule on the motion until after the statute of limitations had run. The court of appeals held that because the plaintiff filed the amended complaint and a motion to permit the amendment prior to the expiration of the statute of limitations, and the defendant was served before the limitation period expired, the statute of limitations was tolled until the trial court ruled on the plaintiff's motion. The ALJ concluded from this holding that unless an amendment is requested prior to the expiration of the statute of limitations, the statute is not tolled. However, whether the statute of limitations is tolled is not dispositive of whether the amendment was timely requested.
C.R.C.P. 15(c) provides that a new legal issue which arises out of the same occurrence set forth in the original pleading relates back to the time of filing the original complaint. Such an amendment is therefore saved by the relation back and is not time barred by the statute of limitations. Roper v. Spring Lake Development Co., 789 P.2d 483 (Colo.App. 1990). Although there are additional requirements of service and notice where the amendment seeks to add an new party, see Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 1985), these requirements pertain to the provision in C.R.C.P. 15(c) which expressly requires notice to the new party "within the period provided by law for commencing the action against him." There is no such requirement where, as here, the amendment consists of alternate theories for relief against the original party. See Roper v. Spring Lake Development Co., supra. Nevertheless, we conclude that the ALJ did not err in precluding the amendment.
Part X(B)(3) of the Workers' Compensation Rules of Procedure provides that a petition to reopen based on error or mistake shall identify the specific error or mistake to be corrected. Part X(B)(2) provides that a petition to reopen based on change of medical condition shall be accompanied by a medical report containing a description of the claimant's present condition and how the condition has deteriorated or improved. An obvious purpose of these requirements is to afford notice to respondents of the factual or legal basis for the petition. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (due process requires that parties be apprised of issues to be litigated).
Here, the claimant's September 1997 Application for Hearing listed the issue as petition to reopen on the grounds of "mistake or error." However, the claimant's pleadings never disclosed the specific error or mistake she alleged, or the theory of her case. Further, the ALJ found that the respondent was surprised by the additional claims. See (April 17, 1998 Tr. p. 6).
The claimant asserts that the respondent were not surprised because in January 1998, the respondent deposed Dr. Hogle on the issues of error or mistake. However, the claimant was not necessarily restricted to any theories of error or mistake which might have been identified from testimony elicited during the deposition. To the contrary, because the claimant had not committed to any specific theory of error or mistake, there was a potential for the claimant to present different or additional theories at the subsequent hearing. These circumstances support the ALJ's determination that there was an element of surprise or uncertainty in the additional claims of error or mistake.
Further, the denial of a motion to amend has been upheld where there was a substantial delay in seeking to amend, the amendment would necessitate a delay in the trial date, the plaintiff had no reasonable excuse for the delay in bringing the additional claims, and the defendant was prejudiced in having to address additional claims. See Polk v. District Court, 849 P.2d 23 (Colo. 1993). We conclude that the circumstances here are sufficiently similar, and thus, there is no abuse of discretion in the ALJ's failure to permit the amendment. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) ; Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) (no abuse of discretion unless ALJ's actions exceed the bounds of reason).
II.
Alternatively, the claimant contends the ALJ erred in denying the petition to reopen on grounds of change of condition. The claimant contends that she suffered a worsening of condition due to the failure of her hearing aids, and that new hearing aids are required to improve her condition and prevent a further deterioration. In support, the claimant relies on Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989), and our conclusions in Bauder v. City Glass Inc., W.C. No. 4-135-618 (February 7, 1995), for the proposition that improvements in technical knowledge constitute a basis for reopening a claim. Again we disagree.
The claimant's reliance on Standard Metals v. Gallegos, supra, and Bauder v. City Glass Inc., supra, is misplaced. Standard Metals involved medical advances which supported a finding of an error or mistake in the initial determination of compensability, and not a change of condition. In Bauder, we reversed an order awarding the claimant a right to receive hearing aids in the future. We concluded that an award of future hearing aids based on potential medical advancements is not contemplated by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We stated that technological improvements may establish grounds to reopen a claim to obtain further treatment. However, Bauder did not involve a petition to reopen or the proof required by § 8-43-303. Furthermore, we did not conclude that technological advancements may support an order reopening a claim on the grounds of change of condition. To the contrary, we expressly relied on Standard Metals v. Gallegos, supra, for the proposition that technological advancements may be sufficient to justify reopening a claim on the ground of "mistake."
Here, unlike Standard Metals, the claimant's allegations of "mistake or error"were not properly before the ALJ. Therefore, neither Standard Metals nor Bauder support the claimant's argument.
Moreover, there is substantial evidence in the opinions of Dr. Hogle and Dr. Esses to support the ALJ's finding that the claimant has not suffered a worsening of her physical condition due to poor functioning of her current hearing aids, and that new hearing aids would not improve the claimant's nerve loss. (Hogle depo. pp. 6, 41; Dr. Esses August 14, 1997). The ALJ's determination is also a reasonable inference from the testimony of audiologist, Mary Ball. (Tr. pp. 35, 36, 38, 42). Under these circumstances, we cannot say the ALJ abused his discretion in refusing to reopen the petition on grounds of change of condition. See Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
IT IS THEREFORE ORDERED that the ALJ's order dated June 16, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed February 1, 1999 the following parties:
Ann Edens, 930 South Foothills Drive, Lakewood, CO 80228
Gates Corporation, Nick Butler, 999 South Broadway, P.O. Box 5887, Denver, CO 80217
Alexis Risk Management Service, Wendy Stalkfleet, Tower 1, Suite 410, 1515 Arapahoe St., Denver, CO 80202-2117
Barbara J. Furutani, Esq., David M. Pantos, Esq., 1732 Race Street, Denver, CO 80206 (For Claimant)
Lynn P. Lyon, Esq., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondent)
BY: ________________