May 23, 2018

Colorado Court of Appeals: No Error in ALJ’s Finding of Claimant’s Attempt to Circumvent Burden of Proof

The Colorado Court of Appeals issued its opinion in Feliciano v. Industrial Claim Appeals Office on Thursday, May 19, 2016.

Workers’ Compensation—Reopening Claim—DIME—Maximum Medical Improvement.

Claimant sustained an injury, underwent treatment, and was placed at maximum medical improvement (MMI) by her authorized treating provider (ATP). Claimant requested a division-sponsored independent medical examination (DIME) to challenge the ATP’s MMI finding. The DIME physician agreed with the ATP’s MMI date and recommendation for treatment, and he rated claimant’s impairment. Claimant’s employer and its insurer filed a final admission of liability (FAL) based on the DIME.

Claimant did not object to the FAL but instead petitioned to reopen her claim less than two weeks after the FAL was filed and while her claim was still open. The administrative law judge (ALJ) denied and dismissed her petition, noting that the proper procedure would have been to challenge the DIME. The Industrial Claim Appeals Office affirmed and claimant appealed.

On appeal, claimant argued that the ALJ improperly disregarded her counsel’s arguments that she was not challenging the MMI finding and that the ALJ’s findings were not supported by substantial evidence. To reopen a claim, a claimant must show error, mistake, or change in condition. The reopening of a claim is within the sound discretion of the ALJ and may only be reversed for fraud or clear abuse of discretion. The ALJ found that claimant was filing to reopen a claim that wasn’t closed to avoid the higher burden of proof required to overcome a DIME. Claimant’s counsel admitted at oral argument that the petition to reopen was a “strategic” move taken because counsel did not believe claimant could overcome the DIME. The record supports the ALJ’s determination that claimant improperly used the reopening process to challenge the DIME.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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