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Dr. Macaulay v. Villegas.

2022 COA 40. No. 21CA0288. Workers’ Compensation Act—Statute of Limitations—Reopening a Case—Penalty Claim—Equitable Tolling.

April 7, 2022

In 2012, Villegas sustained an admitted work-related back injury while working for Denver Water. He was treated for his injuries at Denver Water’s in-house medical clinic (clinic). Villegas was subsequently placed at maximum medical improvement (MMI), and in 2015 Denver Water filed a final admission of liability (FAL) admitting to a whole person impairment rating of 17%. Villegas sought permanent total disability (PTD) benefits, but an administrative law judge (ALJ) denied and dismissed the PTD claim, leaving Villegas with a permanent partial disability (PPD) award based on the 17% rating. A panel of the Industrial Claim Appeals Office (Panel) upheld the ALJ’s order, and in 2018 a Court of Appeals’ division affirmed. Villegas petitioned for a writ of certiorari to the Colorado Supreme Court, which was denied in 2019. The claim subsequently closed.

Sometime after April 5, 2018, Villegas learned that staff members at the clinic serve as nurse case managers, and not in a treating capacity, when employees are injured at work. The Workers’ Compensation Act (Act) requires employers and insurers to advise claimants of their right to refuse to be examined in the presence of a nurse case manager. On April 4, 2019, Villegas applied for a hearing, asserting claims for penalties against Denver Water and the physician who oversaw his workers’ compensation examination, Dr. Macaulay, because they allegedly permitted nurse case managers to attend his appointments with Dr. Macaulay without his knowledge or consent. He also petitioned to reopen his closed claim based on fraud, treatment after MMI, and MMI. An ALJ granted summary judgment in favor of Denver Water and Dr. Macaulay, holding that the applicable statute of limitations to reopen the case barred Villegas’s penalty claims. A Panel concluded that Villegas was barred from pursuing his penalty claims against Denver Water, but that penalty claims against Dr. Macaulay could proceed because the closure of issues only pertained to the parties to the FAL.

As an initial matter, the Court of Appeals rejected Villegas’s contention that the record was inadequate for appellate review or his procedural due process rights were violated because the record was incomplete.

Dr. Macaulay and Denver Water contended that Villegas’s penalty claims were barred by the applicable reopening statute of limitations. The limitation period for reopening a case and the limitation period for asserting a penalty claim both apply when a claimant whose case has closed seeks to assert a penalty claim. The statutes work together by requiring penalty claims to be brought within one year of discovery of the violative behavior and asserted within the context of an open or reopened claim. Reopening must be requested within the later of six years of a claimant’s date of injury or two years after the last disability or medical benefit becomes due or payable. Here, it is undisputed that Villegas’s injury occurred in February 2012, more than seven years before he filed his April 2019 hearing application, and his PPD payments were scheduled to be paid until October 17, 2016. Accordingly, the limitation period for reopening the case expired, so the claim for penalties was untimely.

Villegas argued that even if the reopening statute of limitations applies, his claims should have been permitted to proceed under the doctrine of equitable tolling. For purposes of this claim, the only relevant inquiry is what actions, if any, Denver Water took to prevent Villegas from timely filing his petition to reopen after he learned the facts supporting his penalty claim. Here, Villegas failed to assert that Denver Water, its insurer, or Dr. McCauley took any actions to thwart his ability to timely file a petition to reopen. Accordingly, neither the ALJ nor the Panel erred by refusing to equitably toll the statute of limitations.

The Court also rejected Villegas’s arguments that the ALJ (1) abused his discretion by failing to grant Villegas an extension of time to respond to the summary judgment motion, (2) lacked jurisdiction or authority to rule on the motion for summary judgment, and (3) should have recused himself from hearing the matter.

The Panel’s order dismissing Villegas’s penalty claims against Denver Water as time barred was affirmed. The portion of the Panel’s order permitting penalty claims against Dr. Macaulay to proceed was set aside and the case was remanded to reinstate the ALJ’s order dismissing the claims asserted against Dr. Macaulay.

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

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