Lobato v. Industrial Claim Appeals Office

• Decision Date: 18 January 2005
• Docket Number: No. 03SC556.,03SC556.
• Citation: 223 Colo. 2005,105 P.3d 220
• Parties: Petitioner: Enrique LOBATO, v. Respondents: INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Western Forge.
• Court: Colorado Supreme Court

105 P.3d 220

223 Colo. 2005

Petitioner: Enrique LOBATO, v. Respondents: INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Western Forge.

No. 03SC556.

Supreme Court of Colorado, En Banc.

January 18, 2005.

Steven R. Waldmann, Colorado Springs, for Petitioner.

Dworkin, Chambers & Williams, P.C., David J. Dworkin, Steven G. York, Denver, for Respondent Western Forge.

Pinnacol Assurance, Brandee DeFalco Galvin, Denver, for Amicus Curiae Pinnacol Assurance.

Gordon & MacDonald, P.C., William J. MacDonald, Denver, for Amicus Curiae Workers' Compensation Education Association.

Wilcox & Ogden, P.C., Ralph Ogden, Denver, for Amicus Curiae Steven U. Mullens.

Justice COATS dissents.

HOBBS, Justice.

We granted certiorari in this workers' compensation case to consider the effect of a 1999 amendment to the Workers' Compensation Act (Act) retroactively altering the timeline for claimants' selection of a division independent medical examiner (DIME).¹ The Administrative Law Judge (ALJ), Industrial Claim Appeals Office (ICAO), and the Director of the Division of Workers' Compensation (Director) issued three separate interpretations of how the 1999 amendment applies to cases like that of petitioner Enrique Lobato, where a final admission of liability (FAL) that gave no notice of the new time limit was received before the 1999 amendment came into effect.

We reverse the court of appeals' judgment and hold that Division Rule IV(L)(3), 7 Colo.Code of Regs. section 1101-3 (2004),² correctly effectuates the intent of the legislature. To implement the General Assembly's dual policies of ensuring administrative notice to claimants of procedural requirements and expediting the resolution of existing workers' compensation claims, we hold that Lobato, whose injury occurred after July 1, 1991 and before August 5, 1998, and whose FAL was filed before September 1, 1999, had no time limit to select a DIME because he did not receive notice of the change in the timeline. Therefore, the ALJ erred in striking the DIME as untimely, and the ICAO and the court of appeals erred in upholding the order. We reverse the court of appeals' judgment and remand with directions to reinstate Lobato's claim and DIME report and to return this case to the ALJ for further proceedings consistent with this opinion.

I.

On December 28, 1992, petitioner Lobato injured his back in the course of his work for Western Forge. In August, 1993, Lobato's primary physician examined him and reported that he had reached maximum medical improvement (MMI) for his work-related injury and had no lasting impairment.

Western Forge filed its FAL on March 25, 1994, pursuant to section 8-43-203(2)(b)(II), 3 C.R.S. (1994). In its FAL, Western Forge denied further liability, stating that Lobato was not medically impaired or entitled to continuing benefits. The FAL was printed on the 1991 revised version of Workers' Compensation Form 4, provided by the Division of Workers' Compensation, and included the following notice:

NOTICE TO CLAIMANT: This is the Final Admission by the insurance carrier or self-insured employer in your case. If you disagree with the amount or type of benefits which the carrier or self-insured employer has agreed to pay, you must write a letter to the Division of Workers' Compensation, 1120 Lincoln, 14th Floor, Denver, Colorado 80203, stating that you object to this admission of liability. Please send a copy to the insurance carrier or self-insured employer. If you do not notify the division in writing that you object to this final admission within sixty (60) days of the date of the admission, your case will automatically be closed as to the issues admitted in the final admission.

(emphasis in original). Lobato timely filed an objection to the FAL pursuant to the notice provision, stating that he had not reached MMI, but if he had, that he was suffering a permanent disability. Lobato took no further action on this issue.

After his original injury, Lobato was transferred to a different job at Western Forge and continued his employment. On July 6, 1995, Lobato injured his back while at home in the evening. Lobato filed a workers' compensation claim, alleging that his 1995 injury was an aggravation of the 1992 injury and that he was suffering an occupational disease originating from the earlier injury.

During the pendency of Lobato's claim, the General Assembly made two amendments to the Workers' Compensation Act. In 1998, the legislature enacted H.B. 98-1062 (1998 amendment), which added a section defining the procedure for the selection of DIMEs. Ch. 313, § 8-42-107.2, 1998 Colo. Sess. Laws 1427. This new section required that claimants select their DIMEs within thirty days of the filing of the FAL. Id. at 1428.

In 1999, the General Assembly enacted H.B. 99-1049 (1999 amendment), which made the thirty-day time limit applicable to "all open cases with a date of injury on or after July 1, 1991 for which a division independent medical examiner has not been selected." Ch. 86, § 8-42-107.2, 1999 Colo. Sess. Laws 254. This provision came into effect on September 1, 1999. Id. at 255.

The Director considered the application of the amendments to cases such as Lobato's, where FALs were filed before the 1999 amendment. In 1999, after consultation with the Attorney General, the Director published her interpretation that a separate triggering event, aside from the enactment of the amendment, is required to start the thirty-day time limit running.³ This interpretation was promulgated as Rule IV(L)(3).

On October 31, 2000, the ALJ found that Lobato had not met his burden of showing that he was suffering an occupational disease stemming from his original injury and dismissed his claim. Dissatisfied with the ALJ's finding and continuing to assert that his 1992 injury was the cause of his 1995 medical problems, Lobato filed a Notice and Proposal to Select a DIME on November 30, 2000. On January 3, 2001, Lobato applied for a DIME.

On January 30, 2001, Western Forge moved to strike Lobato's application as untimely under the 1999 amendment. Nonetheless, the DIME was completed by Dr. Michael Sparr. On March 7, 2001, Sparr reported that Lobato was suffering from a fifteen percent whole person impairment that was not the result of any pre-existing condition. On September 25, 2001, after an evidentiary hearing, the ALJ granted Western Forge's motion to strike the DIME report from the record. The ALJ concluded that Lobato had lost his opportunity to dispute the MMI and non-impairment determination by failing to comply with the thirty-day time limit of the 1999 amendment.

Lobato petitioned for review of the ALJ's decision, and the matter came before the ICAO. On May 22, 2002, the ICAO affirmed the ALJ's dismissal of the claim, concluding that the 1999 amendment required claimants to select DIMEs within thirty days of the filing of the FAL, regardless of when the FAL was filed. Panelist Halsey specially concurred on the basis that the September 1 effective date of the 1999 amendment was the triggering event that started Lobato's thirty-day period for selection of a DIME. Because Lobato had not met her proposed September 30 deadline for selection, Halsey joined in affirming the dismissal.

Lobato appealed the ICAO ruling to the court of appeals. Writing one year after the Director had promulgated Rule IV(L)(3), the court of appeals affirmed the ICAO. But the court rejected the reasoning of the majority panelists and adopted Halsey's view that the effective date of the 1999 amendment was the triggering event for Lobato's thirty-day period. The court affirmed the ICAO ruling because Lobato had not met the September 30, 1999 deadline.

Lobato petitioned this Court for certiorari review of the court of appeals' judgment.

II.

We reverse the court of appeals' judgment and hold that Division Rule IV(L)(3), 7 Colo.Code of Regs. section 1101-3 (2004), correctly effectuates the intent of the legislature. To implement the General Assembly's dual policies of ensuring administrative notice to claimants of procedural requirements and expediting the resolution of existing workers' compensation claims, we hold that Lobato, whose injury occurred after July 1, 1991 and before August 5, 1998, and whose FAL was filed before September 1, 1999, had no time limit to select a DIME because he did not receive notice of the change in the timeline. Therefore, the ALJ erred in striking the DIME as untimely, and the ICAO and the court of appeals erred in upholding the order. We remand this case to the court of appeals to reinstate the claim and DIME report and instruct the ALJ to conduct further proceedings consistent with this opinion.

A. Standard of Review and Statutory Construction

We review the proper construction of statutes de novo; in doing so, we accord deference to the agency's interpretation of its statute, but we are not bound by it. Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 326 (Colo.2004). When the agency interpretation is not uniform or consistent, we do not extend deference and will look to other statutory construction aids. Colo. Common Cause v. Meyer, 758 P.2d 153, 159 (Colo.1988); see also United States v. Healey, 160 U.S. 136, 148-49, 16 S.Ct. 247, 40 L.Ed. 369 (1895)

(construing effect of amendment on existing cases de novo where subsequent Secretaries of the Interior offered different interpretations).

Our objective is to effectuate the intent and purpose of the General Assembly. Anderson, 102 P.3d at 326; Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo.2004). If the statutory language is clear, we apply the plain and ordinary meaning of the provision. Anderson, 102 P.3d at 326; People v. Luther, 58 P.3d 1013, 1015 (Colo.2002). If the statute is reasonably susceptible to different interpretations, we determine the proper interpretation by examining the legislative goals underlying the provision, the circumstances under which it was adopted, and...