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City and County of Denver v. Industrial Claim Appeals Office.

2021 COA 146. No. 21CA0275.  Workers’ Compensation—Reopening Statute.

December 2, 2021

Claimant is a deputy sheriff for the City and County of Denver (City) who was injured while remanding a defendant into custody. Following surgery and physical therapy, claimant’s authorized treating physician placed him at maximum medical improvement with a 6% scheduled impairment of the left upper extremity. Claimant disagreed with the rating and requested a division-sponsored independent medical examination (DIME). The DIME physician increased his permanent impairment rating to 16% scheduled impairment of the left upper extremity, which could be converted to an impairment rating of 10% of the whole person. The City filed a final admission of liability (FAL) based on the DIME findings, admitting to a scheduled impairment of 16% of the left upper extremity.

Claimant later filed two applications for hearings seeking to convert the admitted scheduled impairment into a whole person impairment rating, which would entitle him to increased benefits, but he never took action to set the matter for a hearing. After six months had passed since claimant had taken any further action on his claim, the City filed a motion to close the claim for failure to prosecute. The director of the Division of Workers’ Compensation (director) issued a show cause order, advising claimant that his claim would be automatically closed if he failed to respond within 30 days, after which he could petition to reopen under the reopening statute, CRS § 8-43-303. Claimant and his counsel received copies of the motion and show cause order but neither timely responded, and the claim was closed automatically.

A few weeks later, claimant filed another application for a hearing. The City responded that the claim had been closed. Claimant moved for reconsideration indicating that neither the City’s motion nor the show cause order was in his counsel’s file and claiming that a formerly employed legal assistant had purposely not given counsel the motion and show cause order. The director then issued an order extending the time claimant had to show cause, and claimant set the matter for hearing. At the hearing, an administrative law judge (ALJ) found that the director had the authority to modify his show cause order, and a panel of the Industrial Claim Appeals Office (Panel) upheld the ALJ’s order.

The City argued on appeal that the director cannot extend deadlines or take other actions on a closed award unless the statutory criteria are met. The Workers’ Compensation Act (Act) provides for closure of FAL issues if the claimant doesn’t contest the FAL and request a hearing within 30 days but expressly states that the closure is subject to the reopening statute. The reopening statute limits the grounds on which an award may be reopened and constrains the director’s authority to reopen an award that had been closed automatically for failure to prosecute. Here, the director, the ALJ, and the Panel never considered whether claimant satisfied the reopening statute’s criteria for reopening the award.

The order was set aside and the case was remanded to the Panel with directions to return it to the director or the ALJ for additional findings to determine whether claimant established a basis for reopening the award.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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