In re Claim of Sipres, 021221 COWC, 5-039-180-005

Docket Nº:W.C. 5-039-180-005
Case Date:February 12, 2021
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...

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