Opinion
W.C. Nos. 4-538-972 4-698-452.
December 15, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated July 8, 2008, that determined that the respondents' had waived the affirmative defense of shifting liability to another employer or insurer for medical benefits related to the claimant's occupational disease. We affirm.
A brief procedural history of the case is necessary. In an order dated November 20, 2007, the ALJ found that the claimant sustained a compensable occupational disease in connection with employment at Molson Coors Brewing Co. (Molson Coors). The ALJ further found Molson Coors liable for medical treatment. Molson Coors appealed the November 20, 2007 order. In an order dated April 3, 2008, we affirmed the ALJ's determination that the claimant had suffered an occupational disease with Molson Coors but remanded the matter for consideration of liability for medical treatment after February 2, 2007, the date the claimant began new but similar employment with a subsequent employer. In our order of remand, we directed the ALJ to determine whether Molson Coors waived the defense of shifting liability for medical expenses to another employer and, if the matter was properly raised, then to issue an order determining who was the employer "on the risk."
On remand, the ALJ concluded that the respondents had not raised and, therefore, waived, the affirmative defense of shifting liability to another employer. On appeal, the respondents contend that at the time they filed their response to application for hearing they had no knowledge that the claimant was working for a subsequent employer. Therefore, the respondents argue that they could not have waived the affirmative defense.
An affirmative defense must be explicitly pled. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977). Further, affirmative defenses are subject to procedural waiver if they are not asserted and proven in a timely fashion. Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995).
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); Bradford v. Nationsway Transport Service, W. C. No. 4-349-599 (March 16, 2000).
Generally, the question of whether a party waived a right is one of fact for determination by the ALJ. Quintana v. Sundstrand Aviation OPS, W.C. No. 3-062-456 (September 24, 2007); Wielgosz v. Denver Post W. C. No. 4-285-153 (December 3, 1998). Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In our view, the record supports the ALJ's finding that the respondents did not raise the affirmative defense of shifting liability to another employer and insurer, and therefore that the defense was waived.
The respondents' Response to Application for Hearing does not mention the defense established by § 8-41-304(1), C.R.S. 2008, concerning an employer's liability for a general occupational disease, or otherwise indicate the respondents' intent to shift liability to a subsequent employer or insurers. We also note that at the commencement of the hearing, the respondents made no mention of the affirmative defense. Rather, the respondents' counsel argued that the claim should be denied in its entirety because the claimant's back condition was not an occupational injury. Tr. at 12-13. Accordingly, the record fails to demonstrate the affirmative defense was timely pled. Barela v. Multifoods, W. C. Nos. 4-511-701 4-512-966 (July 25, 2005). Indeed, as found by the ALJ, the respondents did not expressly argue they were exempt from liability under the last injurious exposure rule until the filing of its post-hearing position statement.
As we noted in our earlier order of remand, some questions of a medical witness, as well as the testimony of the claimant, concerned a possible "aggravation" of the claimant's condition while working for a subsequent employer. Tr. at 48, 83. These questions appear to have alerted counsel for the claimant that the respondents intended to raise the defense because he objected to a line of questions directed to the medical witness on the issue of the exposure of the claimant at the subsequent employer. Tr. at 83-84. Counsel for the claimant argued that the respondents had not raised this issue, but the ALJ overruled the objection. Tr. at 84. Under these circumstances, we cannot say that the claimant tried by consent the issue of the affirmative defense of shifting liability to another employer pursuant to § 8-41-304. See Bill Dreiling Motor Co. v. Shultz, supra; Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996).
The respondents contend that they were surprised because the claimant failed to notify them of his new employment. However, the respondents have not contended that they were misled by responses to any discovery request or failure of the claimant to update discovery. Further, the respondents did not move to amend the pleading, nor did they request a continuance to add the subsequent employer as a party.
The respondents, citing Bain v. Town of Avon 820 P.2d 1133 (Colo.App. 1991) and Cox v. Pearl Inv. Co., 168 Colo. 67, 450 P.2d 60 (Colo. 1969), argue that affirmative defenses not timely raised are not necessarily waived. We are not persuaded that this authority is instructive in the present matter. In Bain, the court found that although the affirmative defense of "statutory employee" immunity under the Workers' Compensation Act was not raised by the defendant as an affirmative defense in its defendant's answer, the affirmative defense was raised in the defendant's motion for summary judgment. Therefore, the court concluded that the defense is deemed to be incorporated in the responsive pleading. In Cox the court determined that the plaintiffs against whom defendant sought and was granted summary judgment were not prejudiced because the affirmative defense of release had been raised by motion for summary judgment, rather than in the answer.
In contrast to Bain and Cox, here the affirmative defense established by § 8-41-304, C.R.S. 2008 was not raised until after the hearing. An affirmative defense may be deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See C.R.C.P. 8(c); Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Salazar v. Alamosa County Road and Bridge, W. C. Nos. 4-333-385; 4-393-720; 4-393-723; 4-393-726 4-397-554 (December 4, 2000). Here, the parties were both allowed the same time to file position statements and the claimant's ability to rebut the newly raised affirmative defense was compromised.
The respondents also contend that that they generally raised the issue of apportionment between successive industrial injuries in their Response to Application for Hearing. We first note that the claimant's former employer the Coors Brewing Co. was in the case at the time the response was filed and the claimant could reasonably think that apportionment applied to the two named respondent employers. We further note that the respondents in their response listed a number of issues including § 8-43-303, C.R.S. 2008, which deals with reopening, § 8-43-203(2)(B)(II), C.R.S. 2008, which deals with admissions of liability, offsets, wage loss, statute of limitations, and a number of other issues, none of which were specifically tried by this respondent. In our view the ALJ was not compelled to determine that by identifying "apportionment" in their response that the respondents gave notice to the claimant that they intended to shift liability to a subsequent employer or insurers pursuant to the affirmative defense established by § 8-41-304.
In our opinion, this evidence does not compel the conclusion that the respondents did not intentionally relinquish a known right with full knowledge of all the relevant facts. The evidence might support a contrary result but it does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). Consequently, we cannot say that the ALJ erred as a matter of law in her determination that the respondents' affirmative defense of shifting liability to another employer or insurer for medical benefits for the claimant's occupation disease was waived because it was not affirmatively pled.
IT IS THEREFORE ORDERED that the ALJ's order issued July 8, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
JERRY KRUSE, ARVADA, CO, (Claimant).
COORS BREWING CO MOLSON COORS BREWING CO, Attn: TINA GIBSON/RICK HINDMAN, ESQ., C/O: COORS RISK MGMT DEPT, GOLDEN, CO, (Employer).
AMERICAN CASUALTY CO ZURICH AMERICAN, Attn: KYLE L THACKER, ESQ., C/O: RITSEMA LYON, PC, DENVER, CO, (Insurer).
THE ELLIOTT LAW OFFICES, Attn: MARK D ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
WHITE STEELE, PC, Attn: MATTHEW TILLS, ESQ., DENVER, CO, (For Respondents).
ZURICH AMERICAN, Attn: TRUDY SPRATTA, C/O: BROADSPIRE, GOLDEN, CO, (Other Party).
AMERICAN CASUALTY CO OF READING PA, Attn: MARY KOCH, C/O: CNA, DENVER, CO, (Other Party 2).