Opinion
W.C. No. 3-993-065
August 6, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ Erickson) which awarded permanent partial disability benefits. We affirm.
The claimant suffered a back injury arising out of and in the course of his employment at Bassett Bedding on August 17, 1990. On October 17, 1990, the respondents filed a Final Admission of Liability for medical and temporary disability benefits. The claimant did not timely object to the Final Admission.
In 1996, the claimant filed a petition to reopen the claim. The claimant alleged a worsening of his condition from the 1990 injury, and requested additional temporary disability and medical benefits. Administrative Law Judge Friend (ALJ Friend) found that the claimant's worsened condition was due to a new industrial injury, and not the 1990 industrial injury. Consequently, in a Summary Order dated July 25, 1996, ALJ Friend denied the petition to reopen.
On August 16, 1996, the claimant filed a claim for workers' compensation, which alleged a back injury on July 1, 1995. Liability was admitted. At maximum medical improvement, Dr. Shih opined that the claimant sustained five percent whole person medical impairment from the 1995 injury and 5 percent whole person impairment from the 1990 injury.
The claimant subsequently sought an award of permanent partial disability benefits in the 1990 injury claim based on Dr. Shih's medical impairment rating. In support, the claimant argued that the issue of permanent partial disability was not closed. Alternatively, the claimant filed a petition to reopen dated June 19, 1997. The respondents objected and asserted that the claim is closed and barred from reopening under the six year statute of limitations in § 8-43-303, C.R.S. 1997.
ALJ Erickson found that neither the October 17 Final Admission of Liability, nor ALJ Friend's Summary Order closed the issue of permanent partial disability. Therefore, ALJ Erickson determined that the litigation of the issue was not governed by the six-year statute of limitations in § 8-43-303. ALJ Erickson also found that if the issue was closed, the statute of limitations was tolled under the rationale in Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986).
Furthermore, ALJ Erickson credited Dr. Shih's opinion that the claimant sustained 5 percent whole person impairment from the 1990 injury. Accordingly, ALJ Erickson ordered the respondents to pay permanent partial disability benefits based on 5 percent whole person impairment.
On review, the respondents contend, inter alia, that ALJ Erickson erroneously found that the issue of permanent partial disability was not closed and was not subject to the six year statute of limitations in § 8-43-303. We disagree.
Admittedly, once an issue has been closed by an uncontested final admission of liability or final award, no further benefits may be awarded in the absence of an order reopening the claim. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). Under § 8-43-303, an ALJ may only reopen a claim within six years of the date of the injury. Ortiz v. Charles J. Murphy Company, ___ P.2d ___ (Colo.App. No. 98CA0086, July 23, 1998).
However, an uncontested final admission of liability only closes "the issues admitted in the final admission." Section 8-43-203(2)(b), C.R.S. 1997; Dalco Industries, Inc., v. Garcia, 867 P.2d 156 (Colo.App. 1993). The respondents concede that their October 17 Final Admission of Liability was silent on the issue of permanent disability. Under these circumstances, the claimant's failure timely to object to the Final Admission did not close the issue of permanent disability. See Tidwell v. Department of Corrections, W.C. No. 4-150-549 (November 25, 1994); Fries v. Foothills Care Center, W.C. No. 3-990-704 (April 7, 1994); Piper v. Coffee Break Service, W.C. No. 3-903-747, (April 6, 1992).
Furthermore, we agree with ALJ Erickson's determination that the issue of permanent partial disability was not closed by ALJ Friend's Summary Order, and reject the respondents' argument that Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991), compels a contrary conclusion. The facts in Brown Root involved an order which awarded medical benefits and denied temporary disability benefits. The order also expressly discussed the issue of permanent disability and reserved that issue for future determination. Based upon these facts, the court concluded that the order was not a final award on the issue of permanent disability, and thus, a petition to reopen was not necessary to pursue a subsequent award of permanent disability benefits.
In Brown Root, the court held that an order which grants or denies benefits and does not reserve any issues is a "final award," which precludes the claimant from receiving any further benefits unless the claim is reopened in accordance with § 8-43-303. However, the court has also held that the determination of whether an order is a "final award" on a particular issue requires analysis of the nature of the subject addressed by the order, and where an issue is implicitly reserved, it is not subject to the reopening statute. See L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994).
Here, the issue of permanent partial disability was left open by virtue of the respondents' Final Admission of Liability. The respondents did not attempt to close the issue at any time prior to ALJ Friend's order. Further, the claimant did not seek an award of permanent partial disability benefits from ALJ Friend, and the respondents did not raise the issue before ALJ Friend. Rather, the only benefits at issue before ALJ Friend were the benefits which were closed by the Final Admission of Liability. It is implicit in these circumstances that the issue of permanent disability remained reserved for future determination. See L.E.L. Construction v. Goode, supra. It follows that ALJ Erickson properly concluded that the claimant's request for permanent partial disability benefits was not barred by the statute of limitations for reopening a claim.
Moreover, because we uphold ALJ Erickson's conclusion that the issue of permanent partial disability was not closed, it is immaterial whether ALJ Erickson erroneously relied upon Valdez v. Industrial Commission, supra, to determine that the statute of limitations for reopening the claim was tolled. Therefore, we do not consider the respondents' arguments concerning Valdez.
IT IS THEREFORE ORDERED that ALJ Erickson's order dated November 18, 1997, 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. 1997.
Copies of this decision were mailed August 6, 1998 to the following parties:
Rickie G. Hoyle, 3276 S. Dale Ct., Englewood, CO 80110
Bassett Bedding, P.O. Box 666, Bassett, VA 24055-0666
Liberty Mutual Ins. Co., P.O. Box 3539, Englwood, CO 80155-3539
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)
David G. Kroll, Esq., 1120 Lincoln, Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________