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In re Armijo v. Federal Cleaning Con., W.C. No

Industrial Claim Appeals Office
May 2, 2008
W.C. No. 4-615-398 (Colo. Ind. App. May. 2, 2008)

Opinion

W.C. No. 4-615-398.

May 2, 2008.


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated November 14, 2007 that determined the claimant's claim had been closed and denied the claimant's petition to reopen. We affirm.

The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted work related injury and the respondents filed a final admission of liability based on a Division Independent Medical Evaluation (DIME). The claimant applied for a hearing challenging the opinion of the DIME physician. At the first scheduled hearing, the claimant's former attorney stated that the claimant withdrew her objection to the final admission and agreed to have the case closed. Thereafter, the claimant's present counsel set the matter for another hearing on the issue of whether the claimant's case was closed and also on the issue of reopening if it was determined that the claim had closed. The claimant had been informed by her former attorney of the legal ramification of the withdrawal of her objection to the final admission. The claimant willingly and knowingly decided to withdraw her objection to the final admission and there was no mistake justifying reopening of the claim. The ALJ concluded that the claim was closed by the claimant's withdrawal of her objection to the final admission and denied the claimant's petition to reopen.

I.

On appeal, the claimant first contends that the ALJ erred in determining that the claim was closed by the mere oral withdrawal of the objection to the final admission when no order issued closing the claim. The claimant argues that because the claimant timely filed an objection to the final admission her claim did not close by operation of the final admission. The claimant then argues that because there was no order issued at the first hearing closing her claim her claim remained open. We disagree.

Here, the first hearing consisted of only a few words exchanged between the claimant's former counsel and the ALJ. Exhibit B. The ALJ stated that he understood the parties had a resolution and desired to read that into the record. The claimant's former counsel stated that the claimant agreed to have the case closed on the final admission and withdrew her objection to it. The ALJ inquired whether there was anything else that was needed and after being told there was not the ALJ closed the record.

It is true that the ALJ at the first hearing did not issue any order. However, it is well established in workers' compensation law that parties may stipulate to certain facts or waive various legal rights. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Sandoval v. Parkview Medical Center, W. C. No. 4-501-083 (May 5, 2004) (discussing judicial admissions). The statements by the claimant's counsel constitute a judicial admission the effect of which was to withdraw the objection previously filed to the final admission. Therefore, the final admission served to close the case and it could not be reopened except pursuant to the reopening statute. Section 8-43-203(2)(d), C.R.S. 2007; See Lewis v. Scientific Supply Co., Inc. 897 P.2d. 905 (Colo.App. 1995).

II.

The claimant next contends that substantial evidence does not exist to support the ALJ's determination that the claimant knowingly and willingly withdrew her objection to the final admission. We again disagree.

Because this issue is factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).

In addition, as we understand the claimant's argument she contends that the actions of the former counsel constituted a mistake or error and therefore her petition to reopen should be granted. Under § 8-43-303(1)(a), C.R.S. 2007, an ALJ may reopen any award on the grounds of error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Where the claimant alleges a mistake the ALJ is required to determine "whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening a case." Travelers Insurance Co., Industrial Commission, 646 P.2d 399, 400 (Colo.App. 1981). Because the ALJ's authority is discretionary we may not interfere with the ALJ's decision to deny a petition to reopen unless the ALJ's rule constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).

Here the ALJ found with record support that the claimant's former counsel testified that he had informed the claimant of the plan to withdraw the objection to the final admission. Tr. 34. The ALJ further found that the claimant's former counsel testified that he had informed the claimant of the implications and legal ramifications of the withdrawal. Tr. 35. The claimant's testimony did contradict her former counsel's testimony on this issue. Tr. 20-21. In addition, the claimant raised questions concerning the reliability of the information given by the claimant's former counsel to her because of language difficulties and questions involving the translation made by the former counsel's legal secretary. Tr. 30. However, we are not persuaded by the claimant's assertion that the legal secretary's translation for the claimant's former attorney added a layer of inadmissible hearsay to the attorney's testimony concerning the conversation he had with the claimant regarding the withdrawal of the objection to the final admission. See People v. Hinojos-Mendoza 140 P.3d 30, 38 (Colo.App. 2005) (policeman's partners' translation of informant's statements appropriate "when the circumstances ensure its reliability"), rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007). An interpreter serves as a language conduit for the declarant. People v. Gutierrez, 916 P.2d 598 (Colo.App. 1995). Here the claimant, consistent with the conversation with her attorney regarding withdrawal of the objection to the admission, did not appear at the scheduled hearing. There was no suggestion that the interpreter had any motive to mislead or distort. The former attorney supplied the legal secretary interpreter to assist in his practice because she had greater skills in Spanish then he had. These circumstances tended to assure the reliability of the translated testimony.

Further, the ALJ exercises "wide discretion" in conducting evidentiary proceedings, including making evidentiary rulings. See § 8-43-207(1), C.R.S. 2007; see also IPMC Transp. V. Industrial Claim Appeals Office, 753 P.2d 803, 804 (Colo.App. 1988). We therefore defer to the ALJ's evidentiary determinations unless her ruling constitutes an abuse of discretion by "exceeding the bounds of reason." See, Rosenberg v. Board of Educ, 710 P.2d 1095, 1098-99 (Colo. 1985). We are not persuaded that the ALJ abused her discretion in allowing the claimant's former counsel to testify to what conversation he had with the claimant regarding the withdrawal of the objection to the final admission. Although there was conflicting evidence produced at the hearing concerning whether the claimant knowingly and willingly withdrew her objection to the final admission, the ALJ's findings are supported by substantial evidence. Consequently, those findings must be upheld on review. We perceive no abuse of discretion in denying the petition to reopen.

III.

The claimant finally contends that the ALJ applied an incorrect standard of law in determining whether the claimant was bound by her former attorney's actions. The claimant argues that in general a client is only bound by procedural, not substantive, actions taken by her attorney. The claimant argues that an attorney may not compromise his client's case without express authority and her former counsel acted without express authority in withdrawing her objection to the final admission. In her conclusions of law, the ALJ noted that generally, the attorney-client relationship vests in the attorney the management, discretion, and control of all procedural matters connected with a proceeding. "By virtue of such delegation of authority, the client is bound by the actions of his attorney." Mountain States Tel. Tel. Co. v. Department of Labor Employment, 184 Colo. 334, 338, 520 P.2d 586, 589 (1974); Brodeur v. Industrial Claim Appeals Office 159 P.3d 810 (Colo.App. 2007). The claimant contends that because the ALJ only cited this general standard she must have misunderstood the legal standard and treated the withdrawal of the objection to the admission as a procedural rather than a substantive action. We disagree that the ALJ applied an incorrect standard of law.

Here, the ALJ specifically found that the claimant's claim closed based on her knowing and willing action in withdrawing her objection to the final admission. Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 11. The ALJ also determined in her Conclusions of Law that the claimant knowingly and willingly consented to the withdrawal of her objection to the final admission. Order at 4, ¶ 6. As we read the ALJ's order, she found that claimant's former counsel acted with express authority in withdrawing her objection to the final admission. Here, the ALJ found that the claimant agreed to the withdrawal of the objection to the admission. Thus, even if the actions of the claimant's former counsel are viewed as involving a substantive rather than procedural matter the claimant was bound by such actions because of the express authority that she gave to her attorney. The ALJ made it clear in her findings that the claimant's knowing and willing agreement to the withdrawal of her objection to the final admission clothed her former counsel with express authority to take the action he did at the prior hearing. See Cross v. District Court, 643 P.2d 39 (Colo. 1982).

IT IS THEREFORE ORDERED that the ALJ's order issued November 14, 2007 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_____ John D. Baird

_____ Thomas Schrant

JUANA ARMIJO, THORNTON, CO, (Claimant).

FEDERAL CLEANING CONTRACTORS, INC., Attn: BOBBIE LARSON, BUFFALO GROVE, IL, (Employer).

ZURICH AMERICAN INSURANCE, Attn: DORIS PERRY, C/O: ZURICH NORTH AMERICA, KANSAS CITY, MO, (Insurer)

THE MORRELL LAW OFFICE, LLC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).

TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: MATTHEW C HAILEY, ESQ., DENVER, CO, (For Respondents).


Summaries of

In re Armijo v. Federal Cleaning Con., W.C. No

Industrial Claim Appeals Office
May 2, 2008
W.C. No. 4-615-398 (Colo. Ind. App. May. 2, 2008)
Case details for

In re Armijo v. Federal Cleaning Con., W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF JUANA ARMIJO, Claimant, v. FEDERAL CLEANING…

Court:Industrial Claim Appeals Office

Date published: May 2, 2008

Citations

W.C. No. 4-615-398 (Colo. Ind. App. May. 2, 2008)