Opinion
W.C. No. 4-138-958.
March 1, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated September 14, 2009, that reopened the claim for the limited purposes of terminating permanent total disability (PTD) benefits and denied the claimant's penalty claims. We affirm.
The claimant sustained an industrial injury on June 1, 1992. The respondents ultimately admitted that the claimant was permanently and totally disabled and started payment for PTD in 1997. The claimant did not initially receive any cost-of-living adjustment (COLA). The parties stipulated that COLA increases were not initially paid from July of 1998 through May 21, 2008. The claimant became employed at Wal-Mart on or about April 15, 2003.
The respondents terminated the claimant's PTD benefits in April of 2003 (the precise same time frame when the claimant returned to work with Wal-Mart). Respondents did not file an admission or obtain approval from an ALJ to terminate PTD benefits. The claimant was fully aware that she had not received any PTD checks from the respondents between 2003 and 2007. The Director of the Division of Workers' Compensation (Director) issued an order to show cause on about May 1, 2008 directing the respondents to explain why they should not be penalized for failing to, among other things, provide COLA increases. The respondents filed an Amended Final Admission of Liability on May 21, 2008 admitting for ongoing PTD benefits and COLA increases. The claimant received PTD and COLA benefits from April of 2003 to the time of the hearing even though she worked at Wal-Mart during that time and continued to do so. The Director issued an order vacating the order to show cause on July 24, 2008.
The respondents filed a petition to reopen on or about June 4, 2008 so that PTD benefits could be terminated because the claimant admittedly returned to work in April of 2003. The claimant first filed penalty claims against respondents in her response to application for hearing dated July 29, 2008. The claimant requested penalties for the respondents' failure to provide timely benefits and for their unilateral termination of benefits.
The ALJ determined that because it was undisputed that the claimant returned to employment and earned more than $4,000 per year since April 18, 2003 the respondents were entitled to terminate the claimant's PTD benefits pursuant to § 8-43-303(3) C.R.S. 2009. However, the ALJ denied the respondents request to recover any overpayment of PTD benefits dating back to April 2003. The ALJ denied the claimant's request for a penalty for terminating PTD benefits because it was barred by the one-year statute of limitation contained in § 8-43-304(5), C.R.S. 2009.
On appeal, the claimant seeks an order of remand to the ALJ requiring the entry of an order of penalties in favor of the claimant and against the respondents for unilateral termination of admitted benefits and failure to timely file an admission of liability and pay statutory COLA increases. The claimant contends the ALJ erred in applying the statute of limitations provisions found in 8-43-304(5), which provides that:
A request for penalties shall be filed with the director or administrative law judge within one year after the date that the requesting party first knew or reasonably should have known the facts giving rise to a possible penalty.
Here the claimant's industrial injury occurred on June 1, 1992. We recognize that the one-year statute of limitations for penalty claims was enacted two years later, effective June 1, 1994. Colo. Sess. Laws 1991, Ch. 309 at 1879, 1881. See Colo. Const. art. V, § 19 (if no effective date is stated in an act, it takes effect on its passage); Diversified Veteran Corporate Ctr. v. Hewuse, 942 P.2d 1312 (Colo. App. 1997).
Nevertheless § 8-43-304(5) constitutes a statute of limitations. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002). The facts giving rise to a possible penalty occurred after the effective date of the statute. Consequently, the limitations statute was not, as contended by the claimant, applied retroactively by the ALJ. The ALJ found, with record support, that claimant was fully aware that she did not receive any PTD check from respondents between 2003 and 2007. Tr. at 45-47. In addition, the ALJ found, again with record support, that the claimant knew and was aware that the benefits stopped sometime before 2004 and that she had not been receiving benefits from respondents for many years. Tr. at 45-47. Thus, the ALJ properly applied § 8-43-304(5), and the conclusion that the claimant's claim for penalties was barred by the one-year statute of limitations is supported in the record. See Arczynski v. Club Mediterranee, W. C. No. 4-156-147 (May 20, 2003); aff'd, Arczynski v. Industrial Claim Appeals Office, No. 03CA1096 (Colo. App. July 1, 2004) (not selected for publication) (§ 8-43-304(5) is a procedural statute of limitations and therefore the ALJ had not erred in applying the 1994 statute of limitations to the claim for penalties even though the claimant's injury occurred in 1992).
The claimant contends that the ALJ erred in relying on Vetten v. Industrial Claim Appeals Office, 986 P.2d 983 (Colo. App. 1999) in determining that the one-year statute of limitations is procedural in nature. We are not persuaded that the ALJ erred. In Vetten, it was determined that the statute of limitations for reopening workers' compensation claims was remedial in nature, and thus application of the statute of limitations to claimant who sustained his injury prior to the amendments did not violate the constitutional prohibition against retrospective legislation. In our view, the ALJ's reliance on Vetten is justified.
The claimant, citing Lobato v. Industrial Claim Appeals Office 105 P.3d 220 (Colo. 2005), argues that claimants are entitled to receive timely and accurate administrative notice of their procedural rights. The claimant argues that had the respondents provided notice to the claimant at the time of termination of benefits the outcome here would have been different. In Lobato, the supreme court determined that the relevant statutes were ambiguous and because the claimant was not accurately notified of time period for objecting to a final admission of liability, time limits for requesting a Division-sponsored independent medical examination did not apply.
However, here the claimed penalties were based upon the assertion that the respondents did not continue to pay PTD benefits and COLA adjustments as they were obligated to by their FAL of 1998. The ALJ found with record support that the claimant was aware that she was not receiving benefits. Tr. at 45-47. Therefore, in the present case there is not the kind of tension as existed in Lobato between effectuating the General Assembly's intent to resolve existing cases and the requirement of administrative notice to claimants that new time limits existed. Here, the claimant had the information available to her that she was not receiving benefits, but chose not to take any action.
The claimant also contends that her request for penalties was timely made within the one-year statute of limitations period once notification of the violation was provided to her attorney. The claimant argues that the failure on the part of the carrier to provide the required notice under WC. Rule of Procedure 1-4(A), Code Colo. Reg. 1101-3 2009, of termination of benefits to the claimant's attorney of record effectively tolled the statute of limitations for penalties until proper notice is given. The claimant argues that the ALJ failed to determine the implication of the respondents' failure to provide notice to the claimant's counsel that termination of PTD benefits had occurred. The claimant argues that once the claimant's counsel became aware of the violation timely objection within the statute of limitations period was made.
We agree with the respondents that this argument was not raised by the claimant before the ALJ. See Claimant's Position Statement. Therefore, we shall not consider the argument for the first time on appeal. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
IT IS THEREFORE ORDERED that the ALJ's order dated September 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
MARGARET JESSE, MANCHESTER, IL, (Claimant).
CONTINENTAL CASUALTY COMPANY, Attn: MS DEBBIE BAIRD, LEXINGTON, KY, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., PUEBLO, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).