IN THE MATTER OF THE CLAIM OF: ANDREW SIPRES, Claimant,
v.
CITY AND COUNTY OF DENVER, Self-Insured Employer, Respondent.
W.C. No. 5-039-180-005
Colorado Workers Compensation
Industrial Claim Appeals Office
February 12, 2021
LAW
OFFICE OF OTOOLE & SBARBARO PC, Attn: NEIL D OTOOLE ESQ,
(For Claimant)
OFFICE
OF THE CITY ATTORNEY, Attn: STEPHEN J ABBOT ESQ, (For
Respondents)
FINAL
ORDER
The
respondent seeks review of an order of Administrative Law
Judge Nemechek (ALJ) served on June 23, 2020, that affirmed
the order of the Director of the Division of Workers’
Compensation (Director) dated October 7, 2019; ordered
permanent partial disability (PPD) benefits of 10% as
converted to a whole person permanent medical impairment;
ordered credit to the respondent for PPD benefits previously
paid; and ordered interest on benefits to the claimant not
paid when due.[1] We affirm.
As to
this appeal, the pertinent underlying facts of this case are
uncontroverted. Claimant worked as a deputy sheriff for the
respondent for approximately 13 years. Claimant was injured
in a courtroom altercation with an individual who was in
custody. Claimant jammed his left arm, including the elbow
and shoulder. Claimant’s treatment included an
arthroscopic surgery to repair a labral tear and subacromial
impingement.
Dr.
Danahey placed the claimant at maximum medical improvement
(MMI) on January 15, 2018, and assigned a 6% scheduled
impairment rating for the left upper extremity. Claimant
underwent a division sponsored independent medical
examination (DIME) with Dr. Hughes on May 31, 2018. Dr.
Hughes agreed with the date of MMI, but increased the
impairment rating to 16% upper extremity that converted to
10% whole person impairment.
Respondent
filed a Final Admission of Liability (FAL) on June 22, 2018,
admitting to Dr. Hughes’ 16% upper extremity scheduled
rating.
Claimant
filed an objection to the FAL and an application for hearing
(AFH) on June 29, 2018. The AFH sought additional PPD
benefits based upon conversion of the scheduled impairment to
a whole person impairment. No hearing was set on this AFH.
Claimant
filed a second AFH on October 12, 2018, endorsing the same
issues as in the first AFH. An unopposed motion to set the
hearing outside of 120 days was granted on November 8, 2018.
No hearing was set on this AFH.
Respondent
filed a motion to close the claim on June 14, 2019, alleging
that claimant had not taken any action in furtherance of
prosecution of the claim since providing answers to
interrogatories on December 3, 2018.
On July
1, 2019, the Director issued an order to show cause, which
stated in part: If you did not already send a response to the
request to close your claim, or if you do not mail or deliver
a response within thirty (30) days of the date of the
Certificate of Mailing attached to this Order, your claim
will be automatically closed. … If your case is closed
after 30 days, you have the right to petition to reopen your
claim, subject to the [reopening] provisions of §
8-43-303 C.R.S.
Claimant
did not file a response prior to the July 31, 2019 deadline.
Claimant
filed his third AFH on August 30, 2019, on the same issues
previously identified in the prior two AFHs. At this
juncture, counsel for the respondent notified counsel for the
claimant that the matter had been closed pursuant to the
Director’s July 1, 2019 order.
On
September 9, 2019, claimant filed a motion with the Director
for reconsideration of the July 1, 2019, show cause order,
seeking to set it aside and to permit setting of the August
30, 2019 AFH. In the motion, counsel for the claimant averred
that he did not have a copy of the July 1, 2019, order in his
file. Claimant supplemented this motion on September 17,
2019, acknowledging that both claimant and claimant’s
counsel had received the June 14 motion to close as well as
the July 1 order. In addition, counsel amended his
affirmation, now averring that his legal assistant had
actually received the pleadings but had not advised counsel
of the motion or the order. Respondent objected to
claimant’s motion for reconsideration.
A
prehearing conference was held on respondent’s motion
to strike claimant’s August 30, 2019, AFH on ripeness
grounds. Prehearing ALJ Martinez Tenreiro issued an order on
October 2, 2019, ordering that respondent has “shown
good cause to strike the AFH as the issues are closed
pursuant to the July 1, 2019 [Director’s] order. Should
the Director reverse the prior order, claimant may refile for
hearing.…”
On
October 7, 2019, the Director reconsidered his July 1 order
and issued a new order extending the time to show cause. The
Director found, in relevant part: On September 11, 2019,
Claimant’s counsel requested that the Order to Show
Cause be set aside. Originally, Counsel stated the motion and
order were not in his file and he, therefore, had failed to
timely respond. However, he has since learned that his former
legal assistant was aware of and received a copy of the
motion and order and failed to inform claimant’s
counsel …. The Claimant has represented that there is
a need for an extension of time to show cause why this claim
should not be closed.
This
extension order further provided that claimant’s claim
may be closed unless, within 120 days of the October 7, 2019,
order, the parties set and attend a hearing before an ALJ on
any outstanding issues, obtain a further extension of time,
or file a stipulation.
On
October 11, 2019, claimant filed his fourth AFH on the issues
of permanent medical impairment (conversion). Respondent
counter-endorsed the issue of appealing the Director’s
October 7, 2019, order, seeking review for an abuse of
discretion.
On
December 22, 2019, respondent filed a motion for summary
judgment with the Office of Administrative Courts as to the
issues in the fourth AFH. ALJ Cayce denied respondent’s
motion on January 3, 2020. The hearing followed on January
22, 2020.
Here,
ALJ Nemechek specifically considered respondent’s
contention that claimant’s failure to timely respond to
the initial show cause order resulted in automatic closure of
the case. Respondent contended the case was closed prior to
the Director’s actions and thus argued that the case
could only be reopened under the reopening statutes of
§§ 8-43-203(2)(d) and 8-43-303 et seq.
According to the respondent, the factual basis on which the
Director relied was “excusable neglect,” not
mistake or error, and that excusable neglect was not a
statutory basis for reopening the claim.
The ALJ
concluded that § 8-43-207(1)(i), C.R.S., confers general
authority to the Director to modify orders, including the
order to show cause. In addition, the ALJ deemed that §
8-43-218(1), C.R.S., confers broad powers on the Director to
close cases and subsumed within that authority is the power
to modify orders concerning case closure.
The ALJ
added that claimant filed his first two AFHs in a timely
fashion, which put respondent on notice that the issue of PPD
was in dispute. The ALJ deemed, that having been apprised of
the issue, the respondent suffered no prejudice when the
Director superseded the July 1, 2019, order to show cause
with his October 7, 2019 order.
The ALJ
affirmed the Director’s October 7, 2019, order and
ruled on the merits of the claimant’s PPD claim.
Respondent’s
Appeal
Respondent...
