Opinion
W.C. No. 4-127-950
December 8, 1997
FINAL ORDER
The self-insured employer (employer) seeks review of a final order of Administrative Law Judge Friend (ALJ) denying its request to offset liability to the Subsequent Injury Fund (SIF). We affirm.
The pertinent facts are undisputed. On August 2, 1994, the employer filed a request for an offset of liability to the SIF. However, ten days later the employer filed a final admission of liability admitting liability for permanent total disability. The admission did not reserve the issue of SIF liability.
On September 9, 1994, an order was entered joining the SIF as a party to the case. Nevertheless, the employer filed additional final admissions of liability in October 1994 and November 1996. Neither of the admissions reserved the issue of SIF liability. In April 1997, the employer sought a hearing on SIF liability.
Relying on our decision in Ricks v. Ampex Corp., W.C. No. 3-651-103 (March 20, 1992) (copy in file), the ALJ concluded that the employer had "waived" the right to claim SIF liability by filing the final admissions of liability. Further, the ALJ noted that the employer did not file a petition to reopen the claim seeking to impose liability on the SIF. Therefore, the ALJ denied the request for an offset to the SIF.
On review, the employer contends that the ALJ erred in dismissing its claim for an offset of liability to the SIF. The employer recognizes our decision in Ricks v. Ampex Corp., but contends that Ricks is distinguishable because that case involved a lump sum payment, and because SIF liability was "stipulated" in that case. We are not persuaded.
In Ricks v. Ampex Corp., supra, aff'd., Ampex Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 92CA0561, April 8, 1993) (not selected for publication), we concluded that the respondents were not entitled to seek SIF liability where they filed a final admission of liability for permanent total disability, and did not reserve the issue of SIF liability. There, as here, the respondents filed a request for offset prior to filing the final admission of liability.
Further, Ricks held that, under § 8-43-203(2)(b), C.R.S. 1997, the filing of the uncontested final admission foreclosed the issue of SIF liability. This was true regardless of the fact that the respondents sought to offset liability to the SIF prior to filing the final admission of liability.
Ricks also held that the respondents waived the right to claim offset of liability to the SIF. We stated that the filing of the final admission of liability for permanent total disability, and the commencement of payment of permanent total disability benefits, was inconsistent with a subsequent attempt to obtain an offset against the SIF.
The employer's arguments notwithstanding, we see no basis for distinguishing our holding in Ricks v. Ampex Corp. from the present case. In our view, the issue of an offset to the SIF is inherent in the overall issue of liability for permanent total disability benefits. Thus, had the employer desired to obtain the offset, it should have litigated the issue or reserved it in the final admission of liability. Since it did neither, the final admission of liability closed the claim. Cf. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995) (filing a final admission of liability closes claim absent petition to reopen).
Further, the mere fact that the employer complied with the rules of procedure concerning joining the SIF does not alter the result. The rules concerning proper joinder of the SIF do not nullify the operation of § 8-43-203(2)(b), nor vitiate the principle of waiver.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed December 8, 1997 to the following parties:
Bruce Ryan, 12526 Eudora, Thornton, CO 80241
Brice Berkeland, Safeway Stores, Inc., P.O. Box 5927, T.A., Denver, CO 80217
Subsequent Injury Fund — Interagency Mail
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
Manuel Solano, Esq., 1333 W. 120th Ave., Ste. 110-K, Westminster, CO 80234 (For Claimant)
Gregg Carson, Esq., Office of Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: __________________________