October 22, 2014

Colorado Court of Appeals: Workers’ Compensation Claimant Jurisdictionally Barred from ICAO Review Because Petition Untimely Filed

The Colorado Court of Appeals issued its opinion in Youngs v. Industrial Claim Appeals Office on Thursday, April 11, 2013.

Workers’ Compensation—Worsening Condition—CRS § 8-43-301(2).

In this workers’ compensation action, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed.

This was claimant’s third appeal arising from his 2005 workers’ compensation claim. Claimant filed a petition to reopen his claim based on worsening condition and fraud. Employer and its insurer sought to have the fraud claim dismissed for failure to establish the elements to support his request to reopen. The administrative law judge (ALJ) agreed and dismissed the fraud claim. The Industrial Claim Appeals Office (Panel) affirmed the ALJ’s order rejecting claimant’s evidentiary and due process challenges.

A hearing was conducted on the worsening condition claim. The ALJ found employer’s retained independent medical examination (IME) physician’s testimony credible and persuasive, and discredited claimant’s testimony as “implausible, inconsistent, and unsupported by the medical records.” She denied and dismissed his petition to reopen based on worsening condition.

On July 15, 2011, claimant filed his petition to review the ALJ’s order regarding fraud, and on July 18, 2011, he filed his petition regarding worsening condition. The Panel affirmed the latter order and determined it lacked jurisdiction to review the former. Claimant appealed.

The Panel dismissed claimant’s appeal for lack of jurisdiction because it was interlocutory and he had failed to file his petition to review within the applicable twenty-day statutory time period after it became final. On June 24, 2011, ALJ Cain granted partial summary judgment to employer dismissing the petition to review based on fraud, but allowed the remaining claim to proceed (the interlocutory order). On June 27, that order was mailed. On June 29, a hearing on the worsening condition claim was heard by ALJ Jones. On July 15, claimant submitted his petition to review ALJ Cain’s order. On the same day, ALJ Jones denied and dismissed the petition to review based on worsening condition. On July 18, that order was mailed. On July 18, claimant submitted his petition to review only ALJ Jones’s order.

CRS § 8-43-301(2) provides that a petition to review an ALJ order “shall be filed within twenty days after the date of the certificate of mailing of the order.” A party missing this time limit is jurisdictionally barred from obtaining further review of the order.

Claimant argued that he was entitled to automatic review of ALJ Cain’s order when he filed a timely petition for review of ALJ Jones’s order. The Court of Appeals disagreed, finding no authority for such an argument. The Panel correctly determined it had no jurisdiction to review ALJ Cain’s order.

In addition, under CRS § 8-43-301(2), claimant was required to submit a petition to review ALJ Cain’s order after ALJ Jones issued her final order. Filing the petition before ALJ Cain’s interlocutory order became final and appealable does not satisfy the statutory requirement, because it was not within the permissible twenty-day filing period. The Panel therefore had no jurisdiction.

Claimant also challenged the merits of ALJ Jones’s order denying and dismissing his petition to re-open based on worsening condition. ALJ Jones found that claimant failed to establish that his right shoulder pain was related to and caused by his work-related injury to his left shoulder. The Court found the record supported the ALJ’s decision and there was no abuse of discretion in her evidentiary rulings.

Summary and full case available here.

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