Opinion
W.C. No. 3-970-332
April 4, 2002
FINAL ORDER
The respondents and the pro se claimant separately petition for review of an order of Administrative Law Judge Felter (ALJ Felter) dated October 25, 2001. The claimant also seeks review of an order of Administrative Law Judge Coughlin (ALJ Coughlin) dated December 21, 2001. We affirm the October 25 order in part, modify the order in part and set it aside in part. We affirm the December 21 order.
The claimant suffered a compensable knee injury on November 21, 1989, from the aggravation of preexisting chondromalacia. The claimant was placed at maximum medical improvement (MMI) on July 1, 1992, and the claim was closed. In 1994, the respondents voluntarily reopened the claim and filed a general admission of liability for the reinstatement of medical benefits and temporary total disability benefits. In January 1996, the claimant underwent surgery for treatment of the injury.
In an order dated October 24, 1997, ALJ Friend determined the claimant developed a compensable infection as a result of the 1996 surgery. Consequently, ALJ Friend ordered the respondents to pay for treatment of the infection. However, ALJ Friend denied penalties for the respondents' failure voluntarily to pay for treatment of the infection, and he expressly reserved the issue of whether the respondents were subject to penalties for violating the Rules of Procedure, Part XVI(K), 7 Code Colo. Reg. 1101-3. No appeal was taken from the October 1997 order. On December 2, 1997, ALJ Friend approved a settlement agreement between the respondents and the Subsequent Injury Fund (SIF) on the penalty issue.
In 1999, the claimant petitioned to reopen the October and December 1997 orders of ALJ Friend on the ground of mistake of law. In particular, the claimant alleged ALJ Friend erroneously reserved the penalty issue to the "discretion of the SIF."
On December 21, 2001, ALJ Coughlin determined there was no mistake of law. Therefore, ALJ Coughlin denied and dismissed the petition to reopen. The claimant timely appealed the December 21 order.
The second petition to review pertains to litigation flowing from the parties' 1998 applications for hearing. The respondents moved to withdraw their 1994 general admission on grounds the claimant's worsened condition was not causally related to the compensable components of the industrial injury. Alternatively, the respondents asserted the claimant reached MMI for the worsened condition. The claimant sought an order awarding medical benefits, and penalties for the respondents' refusal to provide continuing medical benefits. The parties engaged in extensive prehearing litigation including the claimant's motion to disqualify the preceding ALJ. As a result the matter was reassigned to ALJ Gandy.
On June 17, 1999, ALJ Gandy determined there was no causal relation between the claimant's worsened condition and the industrial injury. Instead, ALJ Gandy determined the worsened condition was a natural progression of the claimant's preexisting, non-industrial, bilateral chondromalacia. Consequently, ALJ Gandy allowed the respondents to withdraw the 1994 admission as of May 12, 1999. ALJ Gandy also determined the claimant reached MMI no later than June 25, 1998, when the claimant discontinued attending physical therapy, and made findings of fact on the claimant's request for penalties. However, ALJ Gandy expressly reserved all other issues for future determination following the claimant's filing of a new application for hearing. The claimant timely appealed the order of ALJ Gandy.
On review of the June order, we concluded the claimant withdrew the issue of penalties for adjudication. Therefore, we struck ALJ Gandy's findings on the issue of penalties. However, we upheld ALJ Gandy's determination of MMI and the order which relieved the respondents of the 1994 general admission effective May 12, 1999. The claimant appealed our decision to the court.
In an order dated April 6, 2000, the Court of Appeals affirmed our order in part and set aside our order in part. The court concluded ALJ Gandy determined MMI without affording the claimant an opportunity to present evidence on the issue. Therefore, the court set aside our order which affirmed ALJ Gandy's determination of MMI and remanded the matter for further proceedings.
On August 21, 2000, the matter was remanded to the Division of Administrative Hearings (DOAH) for further proceedings on the issue of MMI. However, on September 14, 2000, another panel issued a Corrected Order of remand, which concluded ALJ Gandy's order allowing the withdrawal of the 1994 general admission "was predicated, in part, on the finding of MMI." Therefore, the panel interpreted the court's order of remand as having set aside ALJ Gandy's order allowing the withdrawal of the 1994 admission and remanded the matter to the DOAH for the entry of a new order on the issues of MMI and the respondents' entitlement to relief from the 1994 admission.
On remand, the matter was assigned to ALJ Felter. Following three days of hearings commencing June 11, 2001 and ending August 22, 2001, ALJ Felter determined the claimant's knee condition is not causally related to the 1989 industrial injury and that the claimant reached MMI for the industrial injury on June 25, 1998. Therefore, in the order dated October 25, 2001, ALJ Felter allowed the respondents to withdraw the 1994 admission of liability and denied any and all claims for additional workers' compensation benefits after August 22, 2001. ALJ Felter also denied the claimant's request for penalties based on the respondents' delayed payment of medical bills to Theraphysics. However, ALJ Felter ordered the respondents to pay penalties for its willful failure to provide an EMPI brand TENS unit from March 24, 1998, through October 28, 1998. Both parties timely appealed the October 25 order.
I. A.
On appeal of the October 25 order, the respondents contend, inter alia, the panel erred issuing the September 14 Corrected Order insofar as it remanded the matter for a new order concerning their right to withdraw the 1994 admission. We agree.
The "law of the case" doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). However, the doctrine does not apply if the prior ruling results in error or is no longer sound because of changed conditions resulting in manifest injustice. People v. Roybal, 672 P.2d 1003 (Colo. 1983); Verzuh v. Rouse, supra.
As noted by ALJ Felter, the panel's Corrected Order of remand is the law of the case concerning the issues to be considered on remand. Of. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Mining Equipment Inc., v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993). However, we have reconsidered the matter on review and conclude that the panel which issued the Corrected Order erred in finding ALJ Gandy's order granting the respondents' motion to withdraw the 1994 admission, was "predicated, in part" on a finding that the claimant reached MMI.
ALJ Gandy found the 1989 industrial injury:
"neither caused nor contributed to the worsening of claimant's condition after he was placed at maximum medical improvement in 1992. Any need for medical treatment or increase in disability or impairment after 1994 was not causally related to the claimant's 1989 injury or his work for respondent employer, but was the result of the natural progression of claimant's preexisting disease." (Finding of Fact 10).
Because the ALJ resolved the causation issue "adversely to claimant," ALJ Gandy determined the respondents were entitled to withdraw the admission which reopened the claim. The ALJ further determined that:
"[W]ere respondents' liability to continue after 1994, claimant would be at maximum medical improvement for his bilateral knee condition as of June 25, 1998."
Reading ALJ Gandy's order as a whole, we now conclude the decision to permit the respondents to withdraw the 1994 admission was based solely on ALJ Gandy's determination that there was no causal relationship between the worsening of the claimant's condition and the industrial injury. However, because the respondents were restricted to prospective relief from the improvidently filed general admission [ see HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990)], and MMI marks the line of demarcation between temporary disability benefits and permanent disability benefits, ALJ Gandy was required to determine the date of MMI to resolve the extent of the respondents' liability for temporary disability benefits between 1994 and May 12, 1999. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) ; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Under these circumstances, the panel which issued the Corrected Order misconstrued the Court of Appeals order of remand by concluding the court "necessarily set aside" ALJ Gandy's order granting relief from the general admission. Rather, we now agree with the respondents that the court affirmed ALJ Gandy's order insofar as it permitted the respondents to withdraw the 1994 admission effective May 12, 1999, and set aside the order insofar as it determined the date of MMI. Therefore, the panel erred in remanding the matter with directions that ALJ Felter enter a new order concerning the respondents' request for relief from the 1994 admission of liability, and ALJ Felter's order on this issue is rendered moot. Consequently, we need not consider the arguments of either party concerning ALJ Felter's to the extent it granted the respondents' request to withdraw the 1994 admission.
Further, because ALJ Gandy's order absolves the respondents of any liability for temporary disability benefits beyond May 12, 1999, ALJ Felter's order is set aside insofar as it requires the respondents to pay additional temporary disability benefits. ( See ALJ Felter's Findings of Fact 25, awarding temporary disability benefits through August 22, 2001).
In view of our conclusions, we also reject the claimant's contention ALJ Felter erroneously denied additional permanent partial disability benefits. Unlike the issue of temporary disability benefits, the respondents' 1994 General Admission did admit liability for additional permanent partial disability benefits. Moreover, a claim for additional permanent partial disability benefits based upon a worsened condition requires the claimant to prove a causal connection between the increased wage loss and the worsened condition. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985).
Here, ALJ Gandy determined the claimant failed to prove a causal connection between his worsened condition and the 1989 industrial injury. ALJ Gandy's determination was fatal to a claim for additional permanent partial disability benefits. Consequently, ALJ Felter's order denying additional permanent disability benefits ( see Finding of Fact 31) was at most harmless and did not implicate the claimant's due process rights. See § 8-43-310 C.R.S. 2001; A R Concrete Construction v. Lightener, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
B.
Next, both parties contest ALJ Felter's finding the claimant reached MMI June 25, 1998. The respondents contend that as a matter of law the claimant reached MMI July 1, 1992. We disagree.
Section 8-43-203(2)(d), C.R.S. 2001, provides that: "if any liability is admitted, payments shall continue according to admitted liability." Here, the respondents' 1994 general admission admitted the claimant was no longer at MMI and admitted liability for temporary disability benefits. The respondents were bound to pay in accordance with that admission until May 12, 1999, when ALJ Gandy allowed them prospectively to withdraw it, or some provision of the law entitled them to cease payment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). This obligation existed even if the respondents' erroneously filed the admission. Pacesetter Corporation v. Collett, ___ P.3d ___ (Colo.App. No. 00CA2099, May 10, 2001). The respondents' argument that the claimant reached MMI in 1992 as a matter of law is tantamount to a repudiation of the 1994 general admission, which conceded the claimant was no longer at MMI. This the respondents may not do.
For his part, the claimant contends there is insufficient evidence to support ALJ Felter's finding that the claimant reached MMI on June 25, 1998, from the "additional injury" caused by the 1996 infection. The claimant also contends ALJ Felter lacked jurisdiction to consider the issue of MMI in the absence of a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107(8)(b), C.R.S. 2001. We reject these arguments.
Under the law applicable to this claim, the determination of MMI is an issue of fact for the ALJ, and the ALJ's determination must be upheld if supported by substantial evidence in the record. Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995). The record is subject to conflicting inferences but there is substantial medical evidence to support ALJ Felter's determination of MMI. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995) (substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion). In assessing the sufficiency and probative weight of the evidence ALJ Felter was free to consider evidence that neither Dr. Striplin nor Dr. Orent examined the claimant after 1997. However, such evidence did not preclude ALJ Felter from crediting their opinions, and we have no authority to substitute our judgment for that of ALJ Felter on review. Consequently, we are bound by ALJ Felter's finding of MMI. Gonzales v. Industrial Claim Appeals Office, supra.
Further, the DIME requirements in § 8-42-107(8)(b) apply only to injuries that occur on or after July 1, 1991. ( See 1991 Colo. Sess. Laws, Ch. 219 at 1306). Consequently, the statute does not apply to this 1989 injury claim and the respondents were not required to obtain a DIME prior to ALJ Felter's determination of MMI.
C.
The respondents also challenge ALJ Felter's assessment of penalties under § 8-43-401(2)(a), C.R.S. 2001, based on their failure to provide an EMPI brand TENS unit. The respondents contend they had no notice the penalty issue would be considered by ALJ Felter. The respondents also contend § 8-43-401(2)(a) is not applicable to this claim, and the record fails to support a determination that the EMPI TENS unit was reasonable.
Where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is for this reason that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, [recently renumbered as Rule (a)(4)] prohibits a party from adding an "issue" after the filing of the application or response "except on agreement of all parties, or approval of an administrative law judge for good cause shown."
The claimant filed an application for hearing which listed unspecified penalties. Thereafter, the parties engaged in extensive litigation concerning the issues to be adjudicated by ALJ Felter. A request for penalties due to the respondents' failure to prove the EMPI brand TENS unit was not among the issues listed on either the February 14, 2001 or June 7, 2001 Prehearing Orders. Neither was the issue mentioned in the claimant's hearing brief dated June 11, 2001, nor was it endorsed at the commencement of the hearings on June 11, 2001 ( see Tr. pp. 5, 9-18, 38-46, 50, 64, 70). The claimant's June 15, 2001, motion to add the issue was denied by ALJ Felter on July 7, 2001. Moreover, the TENS unit penalty claim was not identified as one of the issues for adjudication at the commencement of the hearing on July 23, 2001 (Tr. pp. 5, 9, 10,13-14, 16, 53), or August 15, 2001.
Furthermore, ALJ Felter expressly stated that the "timely payment of medical bills" issue related to the claim for interest. (Tr. June 11, 2001, p. 39). Consequently, we reject the claimant's contention that the "timeliness" of payment issue put the respondents on notice that he was seeking penalties for their failure to provide the EMPI brand TENS unit. Under these circumstances, the order assessing penalties for failure to provide an EMPI brand TENS unit violated the respondents' due process rights and must be set aside.
Even if the respondents' had adequate notice of the penalty issue, it would not alter our conclusions. Section 8-43-401(2)(a), applies only to injuries which occur on or after July 1, 1991, and, therefore, the statute does not apply to this 1989 injury claim. [1991 Sess. Laws, Ch. 219, at 1325]; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
To the contrary, former § 8-53-116 C.R.S. (1989 Cum. Supp.) [codified with changes at § 8-43-304(1), C.R.S. 2001], governs this 1989 injury claim. The statute has been interpreted to mean that respondents are not subject to penalties if their actions giving rise to the penalty claim were predicated on a rational argument based in law or fact that they were not required to pay disputed benefits. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996).
The respondents are only liable for emergency medical treatment and treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2001; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). A general admission of liability for medical benefits is not an admission that all medical treatment thereafter received by the claimant is compensable. Snyder v. Industrial Claim Appeals Office, supra. To the contrary, the respondents remain free to contest the compensability of any particular treatment. Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). Therefore, unlike temporary disability benefits, the respondents' 1994 voluntary admission for medical benefits did not preclude their denial of liability for specific medical benefits on grounds it is not reasonably necessary. Rather, the respondents were free to deny payment of the EMPI TENS unit and require the claimant to establish that the requested apparatus was reasonably necessary to treat the industrial injury.
ALJ Gandy found further medical treatment was not reasonably necessary to treat the industrial injury after 1994. In other words, ALJ Gandy implicitly determined the claimant failed to sustain his burden to prove an EMPI brand TENS unit was reasonably necessary to treat the industrial injury. Furthermore, the physician who prescribed the EMPI brand TENS unit later retracted the prescription. Accordingly, we conclude as a matter of law that in retrospect, the respondents had a rational argument both in law and fact that the disputed TENS unit was not a compensable medical benefit. Consequently, the respondents failure to provide the EMPI TENS unit does not establish grounds for the imposition of penalties.
D.
The claimant also contends ALJ Felter erroneously refused to impose penalties for the respondents' failure to pay certain medical bills to Theraphysics within the time required by the Rules of Procedure, Part XVI(K). We perceive no error.
Contrary to the claimant's contention, Rule XVI(K) does not require the payment of medical bills within 30 days of the date of service. Rather, Rule XVI(K) requires the insurer to pay all uncontested bills "within 30 day of receipt."
Here, the claimant admitted he knew of no Theraphysics bill which the respondents failed to pay within 30 days of the date of the billing. (Tr. July 23, 2001, p. 66). Therefore, the ALJ Felter did not err in denying penalties.
E.
Interest on benefits not paid when due is a statutory right. Section 8-43-410(2), C.R.S. 2001; Beatrice Food Co. Inc., v. Padilla, 747 P.2d 685 (Colo.App. 1987). As stated above, the claimant's request for statutory interest on benefits not paid when due was endorsed for hearing. The respondents do not allege they should be relieved of interest. Therefore, ALJ Felter erred in failing to award interest in accordance with § 8-43-410(2), and we modify the order accordingly.
F.
The claimant's further contentions have been considered and are without merit. Insofar as the claimant seeks penalties for the respondents' "willful failure to comply" with the orders of the ALJ and the Director these issues were not endorsed for adjudication by ALJ Felter and were not considered. Similarly, the claimant's contention that ALJ Felter and the Director erroneously failed to "enforce" his "statutory property rights" was not endorsed for hearing. Consequently, these issues are not properly before us on review. Kuziel v. Pet Fair, Inc., supra. (issue not asserted before ALJ not preserved for appeal).
Finally, the claimant contends the respondents' appeal is filed in "bad faith" and requests an award of costs and attorney fees. We do not consider the respondents' petition to review and appellate brief to be lacking in merit. In fact, the respondents prevailed on their arguments concerning the scope of the remand by the Court of Appeals and the award of penalties for the EMPI TENS unit. Therefore, we decline to award attorney fees. See Section 8-43-301(14), C.R.S. 2001, (attorney fees may be awarded if petition to review or brief in support of a petition "is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law."); Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991); BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
II. A.
On appeal of the December 21 order the claimant contends ALJ Coughlin misapplied the law in denying the petition to reopen by relying on the claimant's failure to avail himself of a direct appeal of ALJ Friend's October 1997 order. We disagree.
Under § 8-43-303(1)(a), C.R.S. 2001, an ALJ may reopen any award on the grounds of error or mistake. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Reopening due to "mistake" includes a "mistake of law." Ward v. Azotea Contractors, 748 P.2d 338 (Colo. 1987). A mistake of law justifies reopening a claim if the original award is inconsistent with a subsequent judicial interpretation of controlling statutory provisions. Renz v. Larimer County School District Poudre R-1, supra; Exeter Drilling v. Industrial Claim Appeals Office, 801 P.2d 20 (Colo.App. 1990).
Because the power to reopen is "permissive," we may not interfere with the ALJ's order unless it 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).
As argued by the claimant, the failure to exercise procedural or appellate rights is not automatically dispositive of whether a mistake of law warrants reopening. See Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). However, we agree with ALJ Coughlin that a petition to reopen need not be treated as a substitute for direct review of an order. Rather, failure to pursue administrative review may be a factor in determining whether the alleged mistake is the type of mistake which justifies reopening. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984).
At a hearing on September 9, 1997, the claimant requested penalties for the respondents' failure to pay for treatment of the compensable infection. Under former § 8-53-116 an ALJ may impose penalties up to $100 per day, but all such penalties are payable to the SIF. See Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Based on § 8-53-116, ALJ Friend denied the claim for penalties payable to the claimant and expressly reserved the claim for penalties payable to the SIF.
We agree with ALJ Coughlin that the claimant failed to establish any change in judicial interpretation of a controlling statutory provision relevant to the disputed order. Former § 8-53-103(1)(i) and § 8-53-103(1)(j), C.R.S. (1986 Repl. Vol. 3B), which are currently codified at §§ 8-43-207(1)(i) (j), C.R.S. 2001, afford the ALJ discretionary authority to keep the record open and defer an issue to a later date for the purpose of taking additional evidence. Thus, both the current and predecessor statutes authorized ALJ Friend to reserve the SIF's right to submit a position statement on the penalty issue. Therefore, ALJ Coughlin did not err in finding the claimant failed to establish a mistake of law in ALJ Friend's October 1997 order.
Furthermore, insofar as the claimant alleged procedural defects in the 1997 hearing before ALJ Friend, those claims may have provided a basis for a direct appeal from ALJ Friend's orders. However, they need not establish grounds to reopen the claim based upon a mistake of law. Accordingly, ALJ Coughlin did not misapply the law insofar as she considered the claimant's failure to file a direct appeal from ALJ Friend's order.
We also note that because the claimant is not entitled to receive any penalties assessed under former § 8-53-116, ALJ Friend's subsequent order approving SIF's settlement of the penalty claim did not deny the claimant any benefit or penalty. Consequently, even if the order approving the settlement was reopened, the claimant is not entitled to relief. It follows the claimant has failed to establish any reversible error which would afford us grounds to grant appellate relief. Cf. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000) (reopening based on worsened condition not warranted if, once reopened, no additional benefits may be awarded).
B.
Relying on rules 3.7 and 1.10 of the Colorado Rules of Professional Conduct for attorneys, which direct an attorney to withdraw where the attorney is placed in the role of advocate and witness in a case, the claimant contends ALJ Coughlin misapplied the law in denying his oral motion to disqualify the respondents' counsel. Assuming, arguendo, that the Rules of Professional Conduct are applicable to workers' compensation claims, we perceive no error by ALJ Coughlin.
The determination of whether to grant a motion for disqualification of opposing counsel is within the sound discretion of the ALJ. See Williams v. District Court El Paso County, 700 P.2d 549 (Colo. 1985); First National Bank of Wray, 819 P.2d 1080 (Colo.App. 1991). Consequently, the ALJ's determination may not be set aside unless her determination exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The claimant requested the respondents' attorneys be disqualified from the workers' compensation claim because the insurer's refusal to pay for treatment of the 1996 infection was based on the "advise of counsel." Further, the claimant alleged the respondents' attorneys were "the only ones with first-hand knowledge of the facts surrounding" the petition to reopen. ( see January 8, 2002 Brief in Support of Petition to Review). However, the claimant admitted he did not intend to call the respondents' attorneys as witnesses in the workers' compensation case, and only intended to subpoena them as adverse witnesses in a "bad faith action" pending in District Court. (Tr. December 13, 2001, pp. 3-6). Under these circumstances, we cannot say ALJ Coughlin abused her discretion in denying the claimant's motion for disqualification.
In any case, the claimant's petition to reopen was premised on an alleged error of law. Under these circumstances, we fail to see how any testimony from the respondents' attorneys would be relevant to the petition to reopen.
The claimant's remaining allegations of error concerning the order of ALJ Coughlin have been considered and are without merit.
IT IS THEREFORE ORDERED that the order of ALJ Felter dated October 25, 2001, is set aside insofar as it relieves the respondents of liability for the 1994 general admission of liability effective August 22, 2001, imposes penalties and awards additional temporary disability benefits.
IT IS FURTHER ORDERED that the October 25 order is modified to award interest in accordance with § 8-43-410(2). In all other respects the order is affirmed.
IT IS FURTHER ORDERED that the order of ALJ Coughlin dated December 21, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 4, 2002 to the following parties:
Gilbert D. Davis, P. O. Box 371012, Denver, CO 80237-5012
ABC Moulding, 13750 E. Smith Dr., Aurora, CO 80011-3150
John Demos, Casualty Reciprocal Exchange, P. O. Box 419497, Kansas City, MO 64173-0194
Subsequent Injury Fund, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
Lynn D. Petersen, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
Gregg Carson, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For SIF)
BY: A. Pendroy