Opinion
W.C. No. 4-268-469
January 21, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary disability and medical benefits. We affirm.
On September 7, 1995, the claimant was injured while leaving the building where the employer's office is located. The claimant reported the injury to the employer, who filed a First Report of Injury, and a Notice of Contest. On October 3, 1995, the claimant filed an Election of Remedies indicating that she intended to pursue a third-party action against the owner of the building instead of seeking benefits under the Workers' Compensation Act (Act). On September 22, 1997, she filed a Notice of Claim for workers' compensation benefits.
The respondents argue the claim is barred by the two year statute of limitations provided in § 8-43-103(2), C.R.S. 1998. The respondents also argue the claimant is barred from recovering workers' compensation benefits as a result of her Election of Remedies and application of the doctrines of waiver and estoppel.
The ALJ found that the claimant suffered compensable injuries on September 7, 1995.
The ALJ determined that the claim was not barred by the statute of limitations because the claimant filed an Application for Hearing within two years of the injury, and the ALJ found that the Application is a sufficient, timely notice of claim. Further, the ALJ determined that the claimant's Election of Remedies rendered the respondents liable for the deficiency between the amount the claimant recovered against the third party and the compensation provided by the Act. Because the claimant did not recovery any money from a third party, the ALJ determined that the respondents are liable for all temporary disability and medical benefits due on account of the industrial injury. Moreover, the ALJ rejected the respondents' arguments on waiver and estoppel.
I.
On review, the respondents renew the arguments which were rejected by the ALJ. We perceive no basis for interfering with the ALJ's determinations.
Section 8-43-103(2), C.R.S. 1998, provides that a claim for workers' compensation is barred unless within two years after the injury, a "notice claiming compensation is filed with the division." The respondents' arguments notwithstanding, a notice of claim need not take any particular form. Saxton v. King Soopers, Inc., 4-100-777 (March 11, 1997). Consequently, the courts have been reluctant to dismiss claims due to technical defects in the notice of claim. See Colorado Auto Body Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (Colo. 1966). In fact, any document which identifies the claimant, indicates that a compensable injury has occurred, and conveys the idea that compensation is expected may be a sufficient notice of claim for purposes of the statute of limitations. See Martin v. Industrial Commission, 43 Colo. App. 521, 608 P.2d 366 (Colo.App. 1979) (petition to reopen was sufficient notice of claim); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984); A. Larson, Workers' Compensation Law, Ch. 15, § 77.A.
We have previously concluded that an application for hearing may constitute a sufficient notice of claim for purposes of the statute of limitations . Enright v. Super Value Stores, W.C. No. 3-198-836 (June 30, 1995). We adhere to our prior conclusions.
Here, the claimant's May 19, 1997 Application for Hearing identifies the claimant, and lists the issue of "compensability." The Application also reflects the claimant's request for temporary disability and medical benefits. Because the Application was filed within two years of the date of injury, the ALJ correctly held that the Application constitutes a timely notice of claim.
II.
Next, the respondents contend that the claimant is barred from receiving workers' compensation benefits as a result of her election to pursue a third-party action. The respondents' argument is based upon the conclusions in Sharmar Nursing Homes v. Industrial Commission, 160 Colo. 197, 416 P.2d 161 (Colo. 1966) ; Industrial Commission v. Schaefer Realty Co., 98 Colo. 445, 56 P.2d 51 (Colo. 1936); Cook v. McLister, 820 P.2d 1167 (Colo.App. 1991); and Baker Redystick Production Co., Inc., 674 P.2d 1011 (Colo.App. 1983), where the courts held that an "election of remedies" under § 8-41-203(1), C.R.S. 1998, is a choice between separate and distinct alternative remedies, and that the election of one remedy excludes the other. Therefore, the respondents argue that the ALJ erred in determining that the claimant's Election of Remedies did not preclude the claimant from recovering benefits under the Act.
Our primary task in construing a statute is to give effect to the intent of the General Assembly. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). To discern legislative intent, we must first turn to the language of the statute, and where the plain language of a statute is clear and unambiguous, the statute must be applied as written. Vaughn v. McMinn, 945 P.2d 404 (Colo . 1997); Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) .
In pertinent part, § 8-41-203(1) provides that, where a claimant is injured by the negligence of a third person not employed by the same employer, the claimant shall elect whether to take workers' compensation benefits or pursue a civil remedy against the third person. The statute provides that where the claimant elects to proceed against the third person "the insurance carrier. . . . shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected and the compensation provided by" the Act.
The term "shall" refers to a mandatory act. Logan County Hospital v. Slocum, 165 Colo. 232, 438 P.2d 240 (Colo. 1968). Therefore, we conclude that § 8-41-203(1) is unambiguous and requires the workers' compensation insurer carrier for the employer to pay the "deficiency" between the claimant's third-party recovery and benefits due under the Act, where the claimant executes a notice electing to pursue a third party action. In fact, electing to sue the third party in tort and recovering any "deficiency" from the compensation carrier is one of three methods a claimant may choose to enforce her rights. Tate v. Industrial Claim Appeals Office, 815 P.2d 15 (Colo. 1991). It follows that the ALJ did not err in concluding that the claimant's Election of Remedies rendered the respondent-insurer liable for the deficiency between the claimant's third party recovery and benefits available under the Act.
Furthermore, we agree with the claimant that the cases cited by the respondents do not compel a contrary result. Schaefer, Baker, Sharmar, and Cook involved claims for benefits against non-insured employers. The Act creates mutually exclusive remedies when a claimant is injured in the scope of non-insured employment. The claimant may sue the employer in a civil action, or the claimant may seek compensation which is enhanced by fifty percent. Section 8-41-102, C.R.S. 1998; § 8-43-408(1), C.R.S. 1998; Cook v. Mclister, supra. However, these principles are inapplicable here because this case concerns an action to recover damages from a third-party tortfeasor and compensation benefits from an insured employer. Therefore, unlike the claimants in Schaefer, Baker, Sharmar, and Cook, the claimant's Election of Remedies does not preclude her from recovering workers' compensation benefits from the respondent-insurer. See In re the Matter of Death of Peterkin, 729 P.2d 977 (Colo. 1986).
III.
Nevertheless, the respondents contend that the claimant is barred from receiving the "deficiency" payments provided by § 8-41-203(1), under the doctrines of waiver and estoppel. We disagree.
Application of the doctrine of equitable estoppel requires proof that 1) the claimant was aware of the facts; 2) that the claimant intended that her words or conduct be acted upon by the respondents or that the words or conduct were such that the respondents had a right to believe that they were so intended; 3) that the respondents were ignorant of the true facts; and that 4) the respondents reasonably relied on the claimant's words or conduct to their detriment. Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996).
The determination of whether the respondents sustained their burden to prove the elements of estoppel is a question of fact for resolution by the ALJ. Sneath v. Express Messenger Service, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1998; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The ALJ found that the respondents failed to present persuasive evidence that the claimant intended to waive her right to workers' compensation benefits in the event she did not recover from the third party. The ALJ's finding is a plausible inference from the evidence the claimant signed the Election of Remedies on the direction of her former attorney, at a time when she was suffering the effects of a closed head injury and did not understand the purpose of the election. (Tr. pp. 32, 39; 42, 43). The ALJ's finding is also supported by evidence the claimant requested the employer designate a workers' compensation doctor to treat the injuries. (Tr. p. 39).
Further, because § 8-41-203(1) expressly requires the respondent-insurer to pay benefits in the amount of the deficiency between the third-party recovery and the amount due under the Act, the ALJ could, and did, find that the respondents did not reasonably rely on the claimant's Election of Remedies as justification for their belief that they had no liability for workers' compensation benefits. Moreover, these findings support the conclusion that respondents failed to sustain their burden to prove the claimant is estopped from receiving workers' compensation benefits.
"Waiver" is the intentional relinquishment of a known right, based upon "full knowledge of all the relevant facts." Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Because the election of remedies statute imposes liability on the respondent-insurer for deficiency payments, the ALJ reasonably inferred that the claimant's election of remedies was not a waiver of her right to claim workers compensation benefits in the event she did not recover from the third party. See Andrews v. Industrial Claim Appeals Office, 952 P.2d 853 (Colo.App. 1998).
To the extent the respondents made other arguments they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated March 12, 1998, 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, 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 January 21, 1999 to the following parties:
Valerie Fox, 11381 J Street, Westminster, CO 80020
CUC International Inc., 3033 South Parker Road, Suite 900, Aurora, CO 80014-2928
Travelers Indemnity Company of Illinois, Travlers Insurance, Cherry S. Rorex, P.O. Box 173762, Denver, CO 80217-3762
Leonard A. Martinez, Esq., 1736 Race Street, Denver, CO 80206 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe Street, Tower 3, Suite 600, Denver, CO 80202 (For Respondents)
BY: ___________