Garrett v. Arrowhead Imp. Ass'n

• Decision Date: 10 March 1992
• Docket Number: No. 91SC276,91SC276
• Parties: Gary M. GARRETT, Petitioner, v. ARROWHEAD IMPROVEMENT ASSOCIATION; The Industrial Claim Appeals Office of the State of Colorado; Robert Husson, Director, Colorado Division of Labor, Workers' Compensation Section; and Colorado Compensation Insurance Authority, Respondents.
• Court: Colorado Supreme Court

Page 850

826 P.2d 850

Gary M. GARRETT, Petitioner, v. ARROWHEAD IMPROVEMENT ASSOCIATION; The Industrial Claim Appeals Office of the State of Colorado; Robert Husson Director, Colorado Division of Labor, Workers' Compensation Section; and Colorado Compensation Insurance Authority, Respondents.

No. 91SC276.

Supreme Court of Colorado,

En Banc.

March 10, 1992.

Withers, Seidman & Rice, P.C., Charles E. Withers, Glenwood Springs, for petitioner.

Paul Tochtrop, Denver, for respondents Arrowhead Improvement Ass'n and Colorado Compensation Ins. Authority.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., Mary Karen Maldonado, First Asst. Atty. Gen., Thomas S. Parchman, Asst. Atty. Gen., Denver, for respondent The Indus. Claim Appeals Office.

No appearance for respondent Robert Husson, Director, Colorado Div. of Labor, Workers' Compensation Section.

Justice LOHR delivered the Opinion of the Court.

I.

This case presents an issue concerning the timeliness of a claimant's filing of a petition to reopen a workers' compensation proceeding in order to seek additional disability benefit payments based on a worsened physical condition. An administrative law judge ("ALJ") held claimant Gary M. Garrett's petition to reopen time-barred by section 8-43-303(2)(a), 3B C.R.S. (1991 Supp.). An Industrial Claim Appeals Panel ("Panel") affirmed, specifically rejecting the claimant's arguments that the employer and insurer should be estopped to assert the bar of the statute of limitations because of their failure to furnish the claimant with a copy of a doctor's report, as required by regulation. The Colorado Court of Appeals affirmed the Panel's order by a divided vote. Garrett v. Arrowhead Improvement Ass'n, 815 P.2d 979 (Colo.App.1991). We granted certiorari and now reverse and remand for further proceedings.

II.

We derive the following facts from the record developed in proceedings before the Department of Labor and Employment. Arrowhead Improvement Association ("Arrowhead") employed the claimant, Gary M. Garrett, to provide security services. Garrett injured his back on December 28, 1980, while unloading a snowmobile in preparation for a routine security patrol. Following the injury, Arrowhead filed a report of accident with the State Compensation Insurance Fund ("Fund"), Arrowhead's provider of workers' compensation insurance. The Fund admitted liability for temporary total disability but denied liability for permanent partial disability. Garrett contested the denial of permanent partial disability, and the matter ultimately was heard before a referee in the Department of Labor and Employment. The referee entered a final order dated June 7, 1985, awarding the claimant permanent partial disability benefits in the amount of $12,046.94, based on a ten percent disability, payable at a rate of $84.00 per week. Garrett received his final disability payment on September 10, 1986.

On November 25, 1988, Garrett filed a petition to reopen his claim based upon the deteriorating condition of his back. When a claimant's condition changes, he has grounds for filing a petition to reopen the award in his case. § 8-43-303, 3B C.R.S. (1991 Supp.); ¹ Rule X(B)(1), 7 C.C.R. 1101-3. This right, however, is subject to a statute of limitations. The statute of limitations in effect at the time Garrett filed his petition required a claimant seeking additional disability benefits to file within two years of the date the last disability benefits became due and payable. Ch. 50, sec. 6, § 8-53-113(2), 1988 Colo.Sess.Laws 385, 387-88. ² Since Garrett received his last disability payment on September 10 1986, his filing deadline was September 10, 1988. ³ However, Garrett filed his petition to reopen on November 25, 1988, over two months past the deadline. Garrett's petition stated, "[c]laimant [is] waiting for a report from Dr. Da Silva." The applicable Department of Labor and Employment regulation requires that a petition to reopen be accompanied by a supporting medical report. Rule X(B)(2), 7 C.C.R. 1101-3. ⁴

Prior to the time Garrett filed the petition to reopen, Arrowhead and its insurer, the Fund, received a medical report from Garrett's treating physician, Dr. Da Silva, indicating that Garrett's back problems had worsened. ⁵ They received the report on August 12, 1988, a date before the limitations period expired. However, they failed to provide a copy of this report to Garrett or his attorney, despite a regulatory obligation to reveal pertinent medical documents. Rule XI(M)(3), 7 C.C.R. 1101-3. Garrett's attorney learned of this failure during a hearing on the petition to reopen held on January 10, 1989. Garrett's counsel acknowledged during oral argument that Garrett had knowledge of some of the content of the report prior to this time based on talking with Dr. Da Silva but denied knowledge of other parts suggesting a worsening of Garrett's condition.

Arrowhead and the Fund opposed Garrett's petition to reopen because Garrett failed to file within the statute of limitations period, i.e., two years after the final disability payment became due and payable, and failed to attach a medical report to his petition. Following the hearing, the ALJ issued a supplemental order granting the petition to reopen. The ALJ found that Dr. Da Silva's medical report was sufficient in content and that the claimant would have attached it to the petition had it been supplied to him as required. The ALJ then allowed additional medical benefits, but denied further disability benefits because the petition to reopen was not filed within the period allowed by the statute of limitations relating to those latter benefits. ⁶ The Panel affirmed. The Panel rejected Garrett's arguments that Arrowhead and the Fund should be estopped from asserting the statute of limitations, or, in the alternative, that the statute of limitations should be tolled "because the respondents did not ... provide the claimant with a copy of Dr. Da Silva's July 1988 report until January 1989."

The court of appeals affirmed. It too rejected Garrett's estoppel and tolling arguments. Garrett, 815 P.2d at 981. Although the "respondents had a duty to provide [Garrett] with a copy of Dr. Da Silva's report," the court concluded that their failure to do so amounted to harmless error. Id. The court reasoned:

Here, there is no evidence that the respondents authorized or requested Dr. Da Silva's July 1988 medical report, or that they intentionally withheld that report from claimant....

Further, there was no evidence presented that claimant delayed the filing of his petition to reopen because he was waiting for a written report from Dr. Da Silva. Nor is there evidence that, absent the report, claimant lacked a basis for asserting a change in his physical condition.

Id. at 980-81. The court of appeals found that the absence of evidence establishing detrimental reliance prevented Garrett from making an effective estoppel argument. Id. at 981.

Garrett asserts that Arrowhead and the Fund violated Rule XI(M)(3), 7 C.C.R. 1101-3, by failing to provide the medical report, and that this violation should toll the statute of limitations. He argues that if tolling turns on a showing of prejudice or detrimental reliance, the case should be remanded for an evidentiary hearing on these issues.

III.

As we have previously observed, Garrett failed to file his petition to reopen within the time allowed by the controlling statute of limitations. Thus, absent some basis for avoiding the application of that statute, Garrett's claim for disability benefits is time-barred.

Garrett argues that the bar of the statute of limitations should be removed based upon the failure of Arrowhead and the Fund to provide him with a copy of the medical report. This failure violated regulations set forth by the Department of Labor and Employment. Rule XI(M)(3), 7 C.C.R. 1101-3, requires:

Each party shall promptly exchange with all counsel of record as well as filing with the division a copy of each medical report which:

Recommends surgery or treatment for improvement of the claimant's condition; or

Indicates a residual permanent disability; or

Indicates a date of maximum improvement or return to work; or

Contains a narrative history or any other information germane to the past, present or future condition or conditions of the claimant.

By enacting this regulation, the Department of Labor and Employment established a policy mandating the disclosure of pertinent medical information.

In assessing the importance of the failure of Arrowhead and the Fund to provide Dr. Da Silva's report, it is necessary to understand the role a medical report plays in filing a petition to reopen. A petition to reopen must be accompanied by a medical report. Rule X(B)(2), 7 C.C.R. 1101-3, provides:

When a petition to reopen is filed due to a change of condition, the petition must be in the form prescribed by the director and accompanied by a physician's report stating the claimant's present condition, how his/her condition has worsened or improved and estimating the percentage of impairment and the additional periods of temporary disability, if any.

A medical report, therefore, plays a crucial role in supporting a petition to reopen a disability claim.

Garrett contends that the failure of an employer or its insurer to provide a workers' compensation claimant with a copy of a medical report relating to the worsening of his condition should prevent application of the statute of limitations based on equitable considerations. We have previously recognized that equity provides a basis for tolling a statute of limitations in appropriate circumstances. Strader v. Beneficial Finance Co., 191 Colo. 206, 211-12, 551 P.2d 720, 724 (1976); Klamm Shell v. Berg, 165 Colo. 540, 546, 441 P.2d 10, 12 (1968); see Overheiser v. Safeway Stores, Inc., 814 P.2d 12, 13 (Colo.App.1991) (...