Opinion
W.C. No. 4-808-735.
September 20, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Allegretti (ALJ) dated May 12, 2011, that denied and dismissed her petition to reopen. We affirm the ALJ's order and deny the respondents' request for attorneys' fees under Section 8-43-301(14), C.R.S.
The ALJ's pertinent findings of fact are as follows. The matter previously proceeded to hearing on April 1, 2010, on a full contest. The issues of compensability and TTD were endorsed for hearing. At the hearing, the claimant was represented by counsel. On April 20, 2010, ALJ Friend entered his specific findings of fact, conclusions of law, and order. ALJ Friend's order found that the claimant began work for the employer in May 2009, and that July 17, 2009, was the date the claimant informed her employer of the pain she was suffering as a result of repetitive motion activities. ALJ Friend held that the claimant's claim was compensable, and that the insurer was liable for medical care reasonably needed to cure and relieve the claimant from the effects of the compensable injury. ALJ Friend ordered the insurer to pay the claimant TTD benefits commencing October 5, 2009.
On March 29, 2011, the respondents filed a final admission of liability for the claimant's claim. The claimant did not file an objection to the respondents' final admission within the required time limitations set forth in Section 8-43-203, C.R.S.
Thereafter, the claimant's counsel withdrew, and the claimant filed a pro se application for hearing. A prehearing conference was held. The prehearing ALJ entered an order reforming the claimant's application for hearing to include the issue of petition to reopen on the ground of mistake for additional periods of TTD benefits. The claimant did not appear at the scheduled hearing, and after receiving relief from a show cause order, the claimant filed a second application for hearing on the issues of TTD benefits for dates in July and August 2009, AWW, and disfigurement. The issue of petition to reopen was not endorsed in the claimant's second application for hearing.
During the ensuing hearing, the claimant stated that she did not file a petition to review of ALJ Friend's April 20, 2010, order and she did not file an objection to the respondents' final admission. She explained that she was not aware she was required to do so. The claimant further stated at the hearing that the ground of "mistake" for her petition to reopen was that her former counsel failed to request TTD for the time periods including July 20, 2009, to July 29, 2009, and a two week furlough period which commenced August 17, 2009. The respondents objected to the claimant's petition to reopen and filed a motion to dismiss on the grounds of issue preclusion, collateral estoppel, res judicata, and failure to file a petition to review.
On May 12, 2011, ALJ Allegretti entered her specific findings of fact, conclusions of law and order, denying and dismissing the claimant's petition to reopen, granting the respondents' motion to dismiss the claimant's claims for additional benefits and change of AWW, and ruling that the benefits recited in the respondents' final admission were closed because the claimant failed to object to it. Initially, ALJ Allegretti found that the respondents would suffer no unfair prejudice if she reformed the claimant's application to include the issue of the petition to reopen. ALJ Allegretti further held that ALJ Friend's order considered testimony and evidence from a time period beginning in May 2009 and including July 17, 2009, through the date of the hearing. ALJ Allegretti held that this order specifically addressed the issues of compensability, AWW, and TTD benefits. ALJ Allegretti found that the issue of the time periods when TTD was due was fully litigated and TTD benefits were ordered commencing October 5, 2009. ALJ Allegretti also found that the claimant did not argue that there was newly discovered evidence but, rather, the evidence which was available at the time of the original hearing should have been presented but was not. ALJ Allegretti held that this is not the type of mistake which justified a petition to reopen because the substantive issues the claimant endorsed for hearing on a reopened case were, or should have been, fully litigated in the previous proceeding.
The claimant has filed a petition to review which contains the following allegation of error:
I feel that I am intitled (sp) to three weeks pay that was owed to me in 2009 April and August 2009. I took the wrong steps after speaking to Judge on pre hearing Oct 10, 2010. Would like to petition to reopen.
The claimant failed to file a brief in support of her petition. Further, the claimant failed to request or procure a transcript of the hearing. In response to the claimant's petition to review, the respondents argue that the petition is frivolous, without merit, and that they are entitled to reasonable attorneys' fees pursuant to Section 8-43-301(14), C.R.S. According to the respondents, the relief the claimant requests is the same relief she requested at the time of the hearing and continues to be barred by the doctrines of issue preclusion and for her failure to contest the final admission which closed her case.
I.
On review, the claimant appears to argue that she is entitled to reopen her claim in order to recover three weeks' pay that she claims is owed to her for the period of April 2009 to August 2009. We reject the claimant's argument.
Under Section 8-43-303(1), C.R.S., an ALJ may reopen an award on the grounds of error, mistake, or change in condition. It is well settled that this statute is "permissive" in nature, meaning that an ALJ is authorized to reopen based on a mistake, but is not required to do so. See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967). In exercising his or her discretion, the ALJ must engage in a two-step analysis. The ALJ must first determine whether there has been an error or mistake. If there is an error or mistake, then the ALJ must determine whether it is the type of error or mistake that warrants a reopening. See Klosterman v. Industrial Commission, 694 P.2d 873 (Colo. App. 1984). Further, the ALJ may consider whether the error could have been avoided by the exercise of due diligence at the time of the prior hearing. See Industrial Commission v. Cutshall, supra; Klosterman v. Industrial Commission, supra. Generally, an ALJ's decision denying a petition to reopen must be upheld unless there is fraud or an abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo. App. 1986).
Moreover, when, as here, a party fails to procure a transcript for appeal, we must presume the ALJ's pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeal's Office, 754 P.2d 800 (Colo. App. 1988). Further, as detailed above, the claimant did not file a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
Here, in her petition to review, the claimant contends that she "took the wrong steps after speaking to Judge on pre hearing Oct 10, 2010." The claimant appears to be again arguing that this is the type of mistake which justifies reopening. We have reviewed the record and the ALJ's findings of fact and conclusions of law. We conclude that ALJ Allegretti properly ruled that evidence which was available at the time of the original hearing but was not presented, is not the type of mistake which justifies a reopening. See Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 638 (1971) (ALJ does not abuse discretion if he denies petition to reopen because facts and evidence existed at time of prior order, and should have been within the knowledge of parties at that time); Notz v. Notz Masonry, W.C. No. 4-158-043 (May 13, 1998). Further, since the claimant failed to procure the transcript of the hearing, we must presume that ALJ Allegretti's findings concerning the petition to reopen are supported by substantial evidence. See Nova v. Industrial Claim Appeals Office, supra. Moreover, to the extent that the claimant is arguing that she now is entitled to reopen her claim to recover temporary disability benefits from April 2009, this issue was not raised below. Instead, the issue for hearing was whether the claimant was entitled to temporary disability benefits from July 20, 2009, through July 29, 2009, and a two week furlough period which commenced on August 17, 2009. Consequently, the claimant is precluded from arguing for the first time on appeal that she is entitled to reopen her claim to recover temporary disability benefits from April 2009. Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo. App. 1995) (party may not raise issues on appeal which were not first raised before ALJ). We, therefore, conclude that ALJ Allegretti did not abuse her discretion in denying and dismissing the claimant's petition to reopen.
II.
The respondents request an award of attorney fees and costs under Section 8-43-301(14), C.R.S. against the claimant on the basis that her petition to review is frivolous and without merit. We deny the respondents' request.
Section 8-43-301(14), C.R.S. provides that attorney fees and costs may be awarded against an attorney who signs a petition to review or brief in support thereof which is not "well grounded in fact" or "warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. . . ."
Here, Section 8-43-301(14), C.R.S. allows for an award of attorney fees and costs against an attorney who signs a petition to review or brief in violation of subsection (14). This subsection does not allow for an award of attorney fees and costs against an individual party. See Stapleton v. United Parcel Service, W.C. No. 4-636-195 (October 18, 2007). Consequently, we conclude that the respondents' request for attorney fees and costs against the claimant is not authorized under Section 8-43-301(14) and is, therefore, denied.
IT IS THEREFORE ORDERED that the ALJ's order issued May 12, 2011, is affirmed and the respondents' request for attorneys' fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Brandee DeFalco-Galvin
_______________________ Kris Sanko
DYANA CHAVEZ, 41 STUART STREET, DENVER, CO, (Claimant), LOCKHEED MARTIN CORPORATION, AURORA, CO, (Employer), INDEMNITY INSURANCE CO OF NORTH AMERICA, Attn: ANITA FRESQUEZ-MONTOYA, C/O: ESIS, TAMPA, FL, (Insurer).
NATHAN, BREMER, DUMM MYERS, PC, Attn: MARK DUMM, ESQ., DENVER, CO, (For Respondents).