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Pacesetter Corp. v. Collett5/10/2001
ORDER AFFIRMED
Division V
Rothenberg and Sternberg JJ., concur
In this workers' compensation proceeding, Brian Collett (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) determining that his injury is not compensable and denying his claim in part. Pacesetter Corporation and its insurer, Liberty Mutual Insurance Company (collectively employer ), also seek review of that part of the Panel's order awarding partial medical and temporary disability benefits based upon a prior admission of liability. We affirm.
Employer hired claimant to sell its various home improvement products. He was severely injured in a one-car automobile accident while he was on a selling trip in Laramie, Wyoming. It is undisputed that claimant was intoxicated at the time of the accident.
The primary issues at the evidentiary hearing before the Administrative Law Judge (ALJ) concerned whether a general admission of liability had been filed by employer , whether the admission required employer to pay any benefits, and whether claimant was engaged in a personal deviation at the time of the accident such that his injuries did not occur within the course and scope of his employment. The ALJ determined that claimant had engaged in a substantial personal deviation that had not ended prior to the accident. Concluding, therefore, that claimant failed to meet his burden of proving that the injuries he sustained were compensable, the ALJ dismissed and denied his claim.
On review, the Panel concluded that the general admission of liability had been improvidently filed and could be retracted. However, it further determined that such retraction could only have prospective effect. The Panel also held that the ALJ had reasonably inferred from the evidence that the accident occurred while claimant was engaged in a personal deviation and, accordingly, denied prospective benefits on the ground that the injuries sustained were not compensable. However, giving the general admission only retroactive effect, the Panel entered a limited award of benefits for the period preceding the hearing.
I.
Claimant first contends that the Panel erred in determining that employer 's general admission of liability was improvidently filed and could be withdrawn. Employer contends that the Panel erred in determining the general admission could only be withdrawn as of the date of the hearing. We address these contentions together and reject them both.
Pursuant to § 8-43-203(1)(a), C.R.S. 2000, an employer must provide notice that liability is admitted or contested within 20 days of the date it becomes aware of a disabling injury. Once an admission of liability has been filed, the employer may not unilaterally withdraw it, but rather must continue to make payments consistent with the admitted liability until the ALJ enters an order allowing revocation in full or in part. Section 8-43-203(2)(d), C.R.S. 2000; HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990).
Here, employer sent claimant a general admission of liability on March 29, 1999. The form indicated that a copy had also been sent to the division of workers' compensation on that same date. Claimant testified that he received the general admission and that he also received a letter from employer dated April 1, 1999, informing him that the general admission was filed and sent to him in error and that it was being withdrawn. Both parties acknowledge that the division file does not contain a copy of the admission.
Claimant maintains that employer remained bound by the admission it filed on March 29, 1999, and was prevented from contest
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