Opinion
W.C. No. 3-808-654.
September 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated March 15, 2011, that denied and ordered dismissal of the claimant's petition to reopen. We affirm.
This claim has a lengthy procedural history which is relevant to the appeal. According to the record, in December 1985, the claimant suffered an admitted injury. In July 1990, ALJ Wheelock concluded that the claimant was permanently totally disabled from any feasible, gainful employment. ALJ Wheelock also found that the claimant had a preexisting condition of multiple sclerosis (MS) and that the trauma of the claimant's industrial injury exacerbated her MS condition. ALJ Wheelock awarded permanent total disability benefits as well as all reasonable and necessary medical costs incurred secondary to the claimant's industrial injury, including the exacerbation of her MS condition.
Thereafter, on September 8, 2004, the respondents filed a final admission of liability, admitting liability for various benefits, including reasonable, necessary, and related medical treatment and/or medications after MMI.
Then, on December 13, 2007, the respondents filed an application for hearing, listing a number of issues to be heard at the hearing, including a petition to reopen the claim on compensability of aggravation of the claimant's MS, Grover medical benefits, and reasonable and necessary medical benefits. In particular, the respondents identified the following issue to be heard at the hearing:
Whether or not the original diagnosis of claimant having multiple sclerosis was medically incorrect such that the admitted injury could not have aggravated this condition. What, if any, of claimant's current maintenance medical treatment is causally related to the admitted injury of 12/4/85?
The certificate of mailing states that on December 13, 2007, the application for hearing was mailed to the claimant at her residence in Montana. The hearing was set to take place on March 26, 2008. On January 3, 2008, the Office of Administrative Courts (OAC) served the Notice of Hearing on the claimant at her Montana residence. This Notice informed the parties of the following:
Claimant's failure to attend the hearing may result in the claim being dismissed.
The issues to be determined at the hearing are those set forth in the Application for Hearing and Response to Application for hearing.
On March 26, 2008, a hearing was held. The claimant failed to appear at the hearing in person or via the telephone, and no counsel appeared at the hearing on her behalf. During the hearing, the respondents informed the ALJ of certified mail being sent from the respondents and being refused by the claimant and being returned by the post office. The respondents also informed the ALJ of a letter sent by the respondents to the claimant regarding the return of Medicare releases, of a motion to compel filed by the respondents due to the claimant's failure to execute signed releases, and orders entered by two ALJs which granted the respondents' motion to compel. The respondents then moved for dismissal of the claimant's workers' compensation claim based on the following grounds:
So I believe what we have here is an absolute, intentional refusal to abide by at least two discovery orders, and then of course the failure to appear by — for the hearing today. So I would move, based on this record, for dismissal of Claimant's Worker's Compensation claim with prejudice for repeated discovery violations and repeated violations of Court orders and Claimant's failure to appear for the properly noticed hearing this morning.
On March 27, 2008, ALJ Harr issued a show cause order. In his order, ALJ Harr found that the respondents had served the claimant by mail with a copy of the Hearing Confirmation, that OAC served the claimant by mail at her last known address with a copy of the Notice of Hearing, that the "claimant has evidenced a continual pattern of ignoring and/or refusing communications and correspondence from respondents that have been sent both by regular and certified U.S. Mail." Consequently, ALJ Harr gave the claimant 30 days to show good cause explaining why she failed to appear at the hearing. The order also informed the claimant that unless she showed good cause, then the respondents' petition to reopen the award of medical benefits, and other relief the respondents requested in their Application for Hearing, would be deemed granted and the claimant's claim for maintenance medical benefits would be denied and dismissed. The order also informed the claimant that she was given 15 days to comply with the prior discovery orders issued by the ALJs regarding signed medical releases. ALJ Harr reserved ruling on the respondents' motion to dismiss the claim based on the claimant's prior discovery violations.
According to the record, on April 22, 2008, the claimant responded to the show cause order stating that she was not aware of the hearing.
On April 30, 2008, the respondents filed a Combined Opposed Motion to Dismiss For Failure to Comply With Discovery Orders and Failure to Appear at Hearing and Opposed Motion for Sanctions For Claimant's Failure to Comply With Discovery Order.
On May 9, 2008, ALJ Krumreich served his order granting dismissal. ALJ Krumreich ruled that the claimant failed to show good cause in writing within 30 days from the date of the show cause order why she failed to appear at the hearing. In his dismissal order, ALJ Krumreich found that in the claimant's response to the show cause order, the claimant stated "I knew nothing of this hearing." ALJ Krumreich found that the claimant's contention was not credible. ALJ Krumreich also found as follows regarding the claimant's response to the show cause order:
4. In her response to the Show Cause Order, claimant states `I knew nothing of this hearing'. As found above, Notice of the Hearing was sent to the same address as was the Show Cause Order which claimant received and responded to. Claimant's contention that she `knew nothing of this hearing' is not considered credible in light of the fact that proper statutory notice of the hearing was given and sent to claimant at the address where she has received other Notices and Orders in this claim. Claimant had proper Notice of the March 26, 2008 hearing and failed to appear. The Notice advised Claimant that her failure to appear may result in the claim being dismissed.
* * * *
6. At paragraph #8 of Claimant's April 22, 2008 response to the Show Cause Order, Claimant states `I deny communication with Pinnacol Assurance.' This ALJ interprets this statement to mean that claimant refuses to communicate with Pinnacol Assurance, the Respondent-Insurer in this matter.
ALJ Krumreich, therefore, granted the respondents' petition to reopen the award of benefits and other relief requested in their application for hearing. ALJ Krumreich specifically ruled that the claimant's claim for maintenance medical benefits, other than those previously admitted, was denied and dismissed. ALJ Krumreich further ruled that dismissal of the claimant's claims for future maintenance medical benefits was appropriate as a sanction under Section 8-43-207(1)(n) C.R.S. for the claimant's willful failure to comply with previous orders entered by the ALJs. ALJ Krumreich's order informed the claimant that the order was final unless a petition to review was filed within 20 days from the date the decision was served.
The claimant did not file a petition to review within 20 days from the date of ALJ Krumreich's dismissal order.
Thereafter, on January 30, 2009, the claimant filed a petition to reopen. In her petition, the claimant alleged that ALJ Krumreich committed error and mistake when he dated his dismissal order on May 8, 2008.
Then, on May 14, 2010, the claimant filed an application for hearing, seeking "[r]ecession or set aside" of ALJ Krumreich's dismissal order and reinstatement of the claimant's court awarded medical care.
In response to the claimant's application for hearing, the respondents stated that since no petition to review was filed, ALJ Krumreich's prior dismissal order was final and not subject to reopening as a matter of law. The respondents also filed a motion to strike the claimant's petition to reopen. In their motion, the respondents argued that neither the Division of Workers' Compensation nor the Office of Administrative Courts retained jurisdiction to reopen the claim for Grover medical benefits where the claim was dismissed with prejudice. The respondents also argued that since ALJ Krumreich's dismissal order was not an award or denial of benefits as contemplated in section 8-43-303(2)(b), C.R.S., the Director and ALJ lacked jurisdiction to reopen the claim.
Subsequently, the Director entered an order denying the respondents' motion to strike. According to the Director's order, the ALJ's denial of maintenance medical benefits was an "award" for purposes of the reopening statute. Consequently, the Director ordered that if the parties could not voluntarily agree to reopen the claim, then the requesting party may file an application for hearing with the OAC.
On September 21, 2010, a hearing was held on the claimant's petition to reopen. During the hearing, the claimant did not testify. The claimant presented the testimony of Jeanette O'Dell, the adjuster for the respondent-insurer who is assigned to the claimant's claim. O'Dell testified that the respondents made numerous attempts to communicate with the claimant, but that the claimant deliberately refused to communicate with the respondent-insurer. O'Dell further testified that she sent all correspondence as well as the claimant's indemnity payments to the claimants address in Montana. According to O'Dell, the claimant has deposited her indemnity checks, but refused and returned all other correspondence.
On March 15, 2011, ALJ Walsh entered his Findings of Fact, Conclusions of Law, and Order. ALJ Walsh found that the evidence presented by the claimant failed to establish any mistake or error made by ALJ Krumreich in dismissing the claimant's claim for medical benefits. ALJ Walsh further ruled that the claimant failed to meet her burden of proof to show mistake or error warranting reopening of her claim. ALJ Walsh reasoned that the claimant had presented insufficient evidence to contradict or otherwise dispute the findings of fact made by ALJ Harr or ALJ Krumreich. Consequently, ALJ Walsh ordered that the claimant's petition to reopen was denied and dismissed.
I.
The claimant raises numerous allegations of error in attacking ALJ Krumreich's 2008 dismissal order, including the following: (1) ALJ Krumreich erred in relying upon Section 8-43-207(1)(n), C.R.S. when dismissing her claim; (2) the reopening of the claimant's entitlement to Grover medical benefits is beyond the applicable statute of limitations period to challenge the compensable nature of such benefits; (3) ALJ Krumreich was precluded from dismissing the claimant's right to recover Grover medical benefits since the respondents did not present any evidence during the hearing on their petition to reopen; (4) ALJ Krumreich was without authority to reopen or dismiss such medical care; (5) ALJ Krumreich's order dismissing all Grover medical care was beyond the relief requested by the respondents; (6) there can be no discovery violation for the failure to provide medical releases; (7) the most severe penalty that may be imposed for a failure to provide a medical release is the temporary suspension of weekly indemnity compensation benefits; (8) a claimant is not required to provide medical releases to the respondents for purposes of investigating a settlement with Medicare-set aside; and (9) Section 8-43-207(1)(n) is inapplicable because the claimant has not failed to prosecute the claim. We are not persuaded by the claimant's arguments.
It is well settled that reopening of a claim is a matter within the discretion of the ALJ. We may not interfere with the ALJ's determination unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School Dist. Poudre R-l, 924 P.2d 1177 (Colo. App. 1996). 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).
Reopening may be based on a showing that a prior award was mistaken either as to fact or law. Renz v. Larimer County School District Poudre R-l, supra. To the extent that a claimant alleges an error or mistake, 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, then the ALJ must determine whether it is the type of error which warrants a reopening. Klosterman v. Industrial Commission, 694 P.2d 873 (Colo. App. 1984). As pertinent here, when determining whether a mistake warrants reopening, the ALJ may consider whether it could have been avoided by the timely exercise of appropriate procedural or appellate rights. Industrial Commission v. Cutshall, 164 Colo. App. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, supra. The failure to exercise procedural or appellate rights, however, is not dispositive of whether the claimant has established an error or mistake which justifies reopening the claim. Renz v. Larimer County School District Poudre R-1, supra. To the contrary, the ALJ may exercise his discretion to reopen a claim if he determines that the overall circumstances warrant reopening. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo. App. 1989); Plotner v. Westran, Inc., W.C. No. 3-108-724 (March 19, 1998).
Here, as detailed above, the claimant did not exercise her appellate rights regarding ALJ Krumreich's 2008 dismissal order by timely filing a petition to review. That is, ALJ Krumreich's dismissal order of the claimant's claim for Grover medical benefits was served on the claimant on May 9, 2008. ALJ Krumreich's order informed the claimant that it was final unless a petition to review was filed within 20 days from the date the decision was served. The claimant, however, failed to file a petition to review within 20 days of ALJ Krumreich's order of dismissal. See Colorado Dep't of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 683 (1972), aff'd, 179 Colo. 258, 499 P.2d 1188 (1972) (upholding denial of petition to reopen where petitioner failed to file petition to review previous order under consideration). Since the claimant did not exercise her appellate rights, we must consider whether ALJ Walsh abused his discretion in denying the claimant's petition to reopen based on the overall circumstances of the case.
We conclude that ALJ Walsh did not abuse his discretion. The claimant did not testify at the hearing. Instead, the claimant presented the testimony of the claims adjuster for the respondent-insurer, O'Dell, who testified that the respondents made numerous attempts to communicate with the claimant, but that the claimant deliberately refused to communicate with the respondent-insurer. O'Dell further testified that she sent all correspondence as well as the claimant's indemnity payments to the claimant's address in Montana. According to O'Dell, the claimant has deposited her indemnity checks, but refused and returned all other correspondence. O'Dell further testified that the claimant did not call the insurer to ask if there was a way that the insurer could facilitate her testifying by telephone for the hearing on the respondents' petition to reopen. See Klosterman v. Industrial Commission, supra (a claimant's inaction, including his failure to apprise the Division of a change of address, or at any time of an address for the registered agent of the corporate entity, is not the type of mistake which would entitle him to a reopening). ALJ Walsh found that he was not persuaded by the claimant's presentation that there was any mistake or error by ALJ Krumreich. It also is important to note that in support of her petition to reopen, the claimant did not present evidence indicating that ALJ Krumreich erred in sanctioning her. See Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991) (ALJ properly dismissed workers' compensation claim alleging work-related mental disability as sanction for claimant's refusal to comply with order to make psychiatric records available to court for in camera proceeding and decision as to whether records should be released to insurer). Based on these circumstances, therefore, we conclude that ALJ Walsh did not abuse his discretion in finding that the claimant failed to meet her burden of proof to show mistake or error warranting reopening of her claim. Consequently, we conclude that ALJ Walsh's order is not beyond the bounds of reason and is supported by the law.
IT IS THEREFORE ORDERED that the ALJ Walsh's order dated March 15, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D Baird
______________________________ Kris Sanko
MARY BETH ACKER, 345 WEST RIVER ROAD, HAMILTON, MT, (Claimant), SOUTHGATE JEWELERS, Attn: CAROL BRADLEY BERGES, COLORADO SPRINGS, CO, (Employer), PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer), STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant)
RITSEMA LYON, PC, Attn: PAUL D. FELD, DENVER, CO, 80202 (For Respondents)