City and County of Denver v. ICAO

• Court: Colorado Court of Appeals
• Decided: December 2, 2021
• Docket: 21CA0275
• Status: Unknown

Opinion

SUMMARY

December 2, 2021

2021COA146

No. 21CA0275, City and County of Denver v. ICAO — Labor and

Industry — Workers’ Compensation — Review Procedures —

Reopening

In this workers’ compensation case, a division of the court of

appeals considers whether the reopening statute, section 8-43-303,

C.R.S. 2021, which limits the grounds on which an award may be

reopened, constrains the authority of the Director of the Division of

Workers’ Compensation to reopen an award that had been closed

automatically for failure to prosecute. The division concludes that

it does.

The division therefore concludes that the Director’s order

reopening a claimant’s award, after the claimant received initial

benefits but failed to prosecute his claim seeking additional

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

benefits, was proper only if the claimant satisfied the criteria in the

reopening statute for reopening the award. Because the Director,

the administrative law judge (ALJ), and the Industrial Claim

Appeals Office (Panel) never considered whether claimant satisfied

those statutory criteria, the division sets aside the Panel’s order and

remands the case to the Panel with directions to return it to the

Director or the ALJ for additional findings.

COLORADO COURT OF APPEALS

2021COA146

Court of Appeals No. 21CA0275

Industrial Claim Appeals Office of the State of Colorado

WC No. 5-039-180

City and County of Denver, Colorado,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Andrew Sipres,

Respondents.

ORDER SET ASIDE AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE GOMEZ

Richman and Harris, JJ., concur

Announced December 2, 2021

Kristin M. Bronson, City Attorney, Stephen J. Abbott, Assistant City Attorney,

John P. Moon, Assistant City Attorney, Denver, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Law Office of O’Toole and Sbarbaro, P.C., Neil D. O’Toole, Denver, Colorado, for

Respondent Andrew Sipres

1

¶ 1

In this workers’ compensation case, we are asked to determine

whether the reopening statute, section 8-43-303, C.R.S. 2021,

which limits the grounds on which an award may be reopened,

constrains the authority of the Director of the Division of Workers’

Compensation (the Division) to reopen an award that has been

automatically closed for failure to prosecute. We conclude that it

does.

¶ 2

The award at issue was closed automatically when claimant,

Andrew Sipres, after receiving some initial benefits, failed to

respond to an order to show cause why his claim seeking additional

benefits shouldn’t be dismissed for failure to prosecute. The

Director later granted claimant additional time to respond to the

show cause order, effectively setting aside the automatic closure of

the award. An administrative law judge (ALJ) and the Industrial

Claim Appeals Office (Panel) upheld the Director’s action.

¶ 3

We conclude that the Director’s action reopening the award

was subject to the reopening statute. Because the Director, the

ALJ, and the Panel never considered whether claimant satisfied the

reopening criteria set forth in that statute, we set aside the Panel’s

2

order and remand the case to the Panel with directions to return it

to the Director or the ALJ for additional findings.

I. Background

¶ 4

In 2017, claimant, a deputy sheriff for the City and County of

Denver, was injured at the courthouse where he worked while

remanding a defendant into custody. After the defendant became

belligerent and punched claimant’s colleague, claimant “tried to

gain custody” of the defendant, wrestling the defendant to a table

and then to the ground. When claimant landed on the ground, his

left shoulder “kind of popped.” He was diagnosed with a posterior

labral tear, for which he underwent surgery.

¶ 5

After post-surgical treatment and physical therapy, claimant’s

authorized treating physician placed him at maximum medical

improvement, with a 6% scheduled impairment of the left upper

extremity. Claimant disagreed with the rating and requested a

division-sponsored independent medical examination (DIME). The

DIME physician increased his permanent impairment rating to a

16% scheduled impairment of the left upper extremity, which could

be converted to an impairment rating of 10% of the whole person.

In June 2018, the City filed a final admission of liability (FAL) based

3

on the DIME physician’s findings, admitting to a scheduled

impairment of 16% of the left upper extremity.

¶ 6

Claimant later filed two applications for hearing, seeking to

convert the admitted scheduled impairment into a whole person

impairment rating, which would entitle him to increased benefits.

But claimant failed to take the actions necessary to set the matter

for a hearing. See Off. of Admin. Cts. Rule 8(I), 1 Code Colo. Regs.

104-3 (procedures for setting a matter for a hearing).

¶ 7

In June 2019, after six months had passed since claimant had

taken any action on his claim, the City filed a motion to close the

claim for failure to prosecute. On July 1, 2019, the Director issued

an order to show cause requesting that claimant inform the

Division and the City in writing “what recent effort [he] ha[d] made

or [was] making to pursue [his] claim.” The order advised that the

“claim will be automatically closed” if he failed to respond within

thirty days, after which he could “petition to reopen [the] claim,

subject to the provisions of [section] 8-43-303.”

¶ 8

Claimant and his counsel’s office received copies of both the

motion and the order to show cause. But because neither claimant

4

nor his counsel submitted a timely response, the claim was closed

automatically as of August 1, 2019.

¶ 9

A few weeks later, claimant filed another application for

hearing, again seeking conversion to a whole person impairment

rating. In response, counsel for the City advised claimant’s counsel

that the claim had been closed. Claimant moved for

reconsideration, indicating that neither the City’s motion nor the

order to show cause was in his counsel’s file. He asked the Division

to set aside the show cause order and set the requested hearing.

¶ 10

Claimant later supplemented his motion with additionally

discovered information, including that

 claimant’s counsel believed the motion and order to show

cause were “purposely not placed in the file by legal

assistant S.W., who no longer works for counsel”;

 upon further investigation, counsel had “found that the

Claimant personally received” both documents and

“called S.W. at counsel’s office multiple times and was

assured by S.W. that this matter would be handled”;

 S.W. “never informed” counsel about the pending motion;

and

5

 “in light of [S.W.’s] conversation with the Claimant, it

[wa]s clear that she knew that such Motion was filed and

purposely, perhaps maliciously, failed to provide counsel

with information which would have enabled him to

respond to both the Motion and the Order.”

¶ 11

In October 2019, the Director issued an order extending the

time within which claimant could show cause why his claim should

not be dismissed for failure to prosecute. The Director noted that

claimant had “requested that the Order to Show Cause be set aside”

and had “represented that there is a need for an extension of time

to show cause why this claim should not be closed.” The Director

then ordered that the claim could be closed unless a hearing was

held on it within 120 days.

¶ 12

Claimant set the matter for a hearing, at which the ALJ

considered three issues: (1) the City’s contention that the Director

exceeded his authority by extending the deadline to respond to the

show cause order, thus effectively reopening the award after it had

been closed; (2) claimant’s request to convert his impairment rating

from a scheduled impairment of the upper extremity to a whole

6

person rating; and (3) claimant’s request for permanent partial

disability (PPD) benefits.

¶ 13

As to the first issue, the ALJ found that the Director’s October

2019 order “was a modification of the prior Order to Show Cause,”

which fell within the Director’s statutory authority to modify orders,

grant extensions of time, close claims, and otherwise manage

claims. Because he concluded that the reopening statute didn’t

govern the Director’s action, the ALJ didn’t address the application

of the statute, except to note that the case on which the City chiefly

relied in its argument on that point, Klosterman v. Indus. Comm’n,

694 P.2d 873 (Colo. App. 1984), was distinguishable.

¶ 14

Then, as to the second and third issues, the ALJ ordered

claimant’s impairment rating converted to 10% of the whole person

and awarded him additional PPD benefits based on that rating.

¶ 15

The City petitioned for review by the Panel only as to the first

issue resolved by the ALJ — whether the Director had authority to

effectively reopen the award. The City did not raise to the Panel, or

to this court, any arguments concerning issues two or three. The

Panel upheld the ALJ’s order, stating that “[i]n [its] view, the closure

effectuated by the Director’s show cause order may be reopened

7

either by proving the factors in [section] 8-43-303 . . . or when the

Director simply invokes his discretion and revokes or amends his

show cause order.” Thus, finding reasonable the ALJ’s conclusion

that the Director acted within his discretionary authority, the Panel

didn’t consider whether the statutory criteria were satisfied.

¶ 16

The City now appeals.

II. Analysis

A. Review Standards

¶ 17

When we interpret a statutory provision, if its language is clear

“we interpret [it] according to its plain and ordinary meaning.”

Davison v. Indus. Claim Appeals Off., 84 P.3d 1023, 1029 (Colo.

2004). In addition, “when examining a statute’s language, we give

effect to every word and render none superfluous because we ‘do

not presume that the legislature used language idly and with no

intent that meaning should be given to its language.’” Lombard v.

Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 571 (Colo. 2008)

(quoting Colo. Water Conservation Bd. v. Upper Gunnison River

Water Conservancy Dist., 109 P.3d 585, 597 (Colo. 2005)).

¶ 18

We review matters of statutory construction de novo. Ray v.

Indus. Claim Appeals Off., 124 P.3d 891, 893 (Colo. App. 2005),

8

aff’d, 145 P.3d 661 (Colo. 2006). Although we will defer to the

Panel’s reasonable interpretation of the statute it administers, we

are not bound by it. SkyWest Airlines, Inc. v. Indus. Claim Appeals

Off., 2020 COA 131, ¶ 32. “The Panel’s interpretation will . . . be

set aside ‘if it is inconsistent with the clear language of the statute

or with the legislative intent.’” Baum v. Indus. Claim Appeals Off.,

2019 COA 94, ¶ 36 (quoting Town of Castle Rock v. Indus. Claim

Appeals Off., 2013 COA 109, ¶ 11).

B. Statutory Provisions

¶ 19

This case exposes a tension in the Workers’ Compensation Act

(Act) between the Director’s discretionary authority to manage

claims and the legislature’s statutory mandate governing the

reopening of closed awards.

¶ 20

On the one hand, the Act grants the Director discretionary

authority to manage claims. For instance, the Act empowers the

Director “to appoint claims managers to review, audit, and close

cases, . . . to promote speedy and uncomplicated problem resolution

of workers’ compensation matters, and to otherwise manage

claims.” § 8-43-218(1), C.R.S. 2021 (emphasis added). Also, the

Act authorizes the Director and ALJs, as part of their discretion to

9

oversee hearings, to “[d]ispose of procedural requests upon written

motion”; “grant reasonable extensions of time for the taking of any

action” upon a written request and showing of good cause; and

“[d]ismiss . . . issues in [a] case . . . , upon thirty days notice to all

the parties, for failure to prosecute the case [if there has been no

activity for at least six months] unless good cause is shown why

such issues should not be dismissed.” § 8-43-207(1)(g), (i), (n),

C.R.S. 2021. The ALJ and the Panel cited these provisions in ruling

that the Director acted within his discretionary authority.

¶ 21

But, on the other hand, as the City points out, the legislature

has placed limits on reopening awards under the Act. Specifically,

the reopening statute provides, in relevant part, that

[a]t any time within six years after the date of

injury, the director or an [ALJ] may, after

notice to all parties, review and reopen any

award on the ground of fraud, an

overpayment, an error, a mistake, or a change

in condition . . . .

§ 8-43-303(1) (emphases added).

¶ 22

The City contends that this section limits the Director’s

authority in managing claims once an award has been closed, even

if the closure is automatic upon failing to respond to a show cause

10

order. The City argues that the Director cannot extend deadlines or

take other actions on a closed award unless the statutory criteria

for reopening are met. It notes, too, that while sections 8-43-207(1)

and -218(1) grant the Director authority to manage active claims,

neither provision expressly extends that authority to closed claims.

C. Applicability of the Reopening Statute

¶ 23

Our resolution of these potentially conflicting statutory

provisions requires us to answer two questions. First, does the

reopening statute apply to an award that has been automatically

closed for failure to prosecute? And second, if so, does it constrain

the Director’s authority to reopen such an award, despite the

Director’s otherwise broad discretionary powers under the Act? We

answer both questions in the affirmative.

¶ 24

As to the first question, another section of the Act, which

provides for the closure of issues admitted in an FAL if the claimant

doesn’t contest the FAL and request a hearing within thirty days,

expressly states that the closure is subject to the reopening statute.

§ 8-43-203(2)(d), C.R.S. 2021. But section 8-43-207(1)(n), which

governs dismissals for failure to prosecute, doesn’t reference the

11

reopening statute. Instead, it is silent concerning when and how

any issues so dismissed may be reopened.

¶ 25

The reopening statute, however, is broadly written. By its

plain language, it applies to the reopening of “any award.”

§ 8-43-303(1). And “award” has been interpreted broadly under the

Act to include “[a]n order, whether resulting from an admission, [an]

agreement, or a contested hearing, which addresses benefits and

which grants or denies a benefit.” Bolton v. Indus. Claim Appeals

Off., 2019 COA 47, ¶ 23 (quoting Burke v. Indus. Claim Appeals Off.,

905 P.2d 1, 2 (Colo. App. 1994)); see also Safeway, Inc. v. Indus.

Claim Appeals Off., 968 P.2d 162, 164 (Colo. App. 1998) (“An order

resulting from an admission which addresses the granting or denial

of a particular benefit is an award which must be reopened if

additional or different benefits are sought.”); Brown & Root, Inc. v.

Indus. Claim Appeals Off., 833 P.2d 780, 783 (Colo. App. 1991)

(“[A]n order, whether resulting from an admission, an agreement, or

a contested hearing, which addresses each of the three types of

benefits (medical, temporary disability, and permanent disability)

and which grants or denies each type of benefits, constitutes an

‘award.’ Thus, after such an award becomes final by the

12

exhaustion of, or the failure to exhaust, review proceedings, no

further proceedings to increase or decrease any such benefits

beyond those granted by the order are authorized, unless there is

an appropriate further order entered directing that those

proceedings be reopened.”) (citation omitted).

¶ 26

We conclude that the language in the reopening statute is

broad enough to encompass claimant’s award, which granted

benefits pursuant to the FAL and which became final when the

claim was closed for failure to prosecute. Indeed, in a similar case,

a division of this court held that a claimant’s receipt of temporary

disability benefits based on the employer’s FAL constituted an

“award” subject to the reopening statute, even though the claim had

been closed for failure to prosecute when the claimant failed to

attend a hearing he had requested. Burke, 905 P.2d at 2. Thus,

when the claimant later sought additional benefits due to the

worsening of his condition, the division held that the award could

be reopened if he satisfied the criteria in the reopening statute. Id.

¶ 27

Likewise, here, claimant received PPD benefits based on the

City’s FAL. That receipt of benefits constituted an “award,” which

became final when the claim was closed for failure to prosecute and

13

timely respond to the Director’s show cause order. And once the

award had been closed, claimant could pursue further benefits only

if he satisfied the criteria in the reopening statute. See Safeway,

968 P.2d at 164; Burke, 905 P.2d at2; Brown & Root, 833 P.2d at

783.

¶ 28

The Division’s regulations implementing the Act and its

actions in this case support this interpretation. As to the

regulations, Rule 7-1(C)(3) expressly states that a closure for failure

to prosecute is subject to the provisions of the reopening statute:

Following receipt of a request to close a claim,

the Director may issue the order to show cause

why the claim should not be closed. If no

response is mailed or delivered within 30 days

of the date the order was mailed, the claim

shall be closed automatically, subject to the

reopening provisions of § 8-43-303, C.R.S.

Dep’t of Lab. & Emp. Rule 7-1(C)(3), 7 Code Colo. Regs. 1101-3

(emphasis added). Similarly, the show cause order issued in this

case provided that if claimant didn’t respond in thirty days, the

claim would automatically be closed and claimant thereafter could

“petition to reopen [the] claim, subject to the provisions of [section]

8-43-303.” Clearly, then, when the Division adopted its rule and

when the Director issued his show cause order, they anticipated

14

that a claim that had been automatically closed for failure to

prosecute could be reopened only under the reopening statute.

¶ 29

Turning to the second question, we disagree with the ALJ and

the Panel that the Director’s discretionary authority somehow

overrides the reopening statute’s restrictions on opening closed

awards. Although the Director has broad discretion to, among

other things, “manage claims” under section 8-43-218(1) and

“[d]ispose of procedural requests” and “grant reasonable extensions

of time” under section 8-43-207(1)(g) and (i), none of these

provisions expressly grants the Director authority to take action on

a closed award.

¶ 30

The only reasonable way to reconcile these potentially

conflicting provisions, while giving meaning to both, is to recognize

that the Director and ALJs have broad discretionary authority over

open claims, but that once an award has been closed, their

discretion is constrained by the reopening statute. Because the

reopening statute is the more specific statute when it comes to

procedures governing closed awards, it governs over the general

provisions in sections 8-43-218(1) and 8-43-207(1). See § 2-4-205,

C.R.S. 2021 (a specific provision prevails over a general one absent

15

manifest legislative intent to the contrary); see also In re Estate of

Gallegos, 2021 COA 115, ¶ 14 (“‘Interpreting a specific provision as

prevailing over a general one still allows for both provisions to

exist,’ an approach that is consistent with the goal of giving full and

sensible effect to the entire statutory scheme.”) (citations omitted).

¶ 31

Indeed, in other contexts, courts have recognized that the

reopening statute constrains the authority of the Director and ALJs.

See, e.g., Padilla v. Indus. Comm’n, 696 P.2d 273, 278 (Colo. 1985)

(recognizing, under the predecessor to the reopening statute, that

“[a]bsent fraud or clear abuse of discretion, the Director’s discretion

[to reopen a case] is absolute, assuming the presence of one or more

of the requisite factors and the exercise of that discretion within the

applicable time period”) (emphasis added), superseded by statute,

Ch. 77, sec. 2, § 8-53-105, 1985 Colo. Sess. Laws 355; Lewis v. Sci.

Supply Co., 897 P.2d 905, 907-08 (Colo. App. 1995) (determining

that an ALJ doesn’t have inherent authority to remedy a fraud in a

closed award by ordering the repayment of fraudulently obtained

benefits, but is limited to the procedures and remedies provided in

the reopening statute).

16

¶ 32

So, too, does the reopening statute constrain the Director’s

ability to issue procedural orders that have the effect of reopening a

closed award. Accordingly, the Director couldn’t belatedly extend

the show cause deadline, reopen the award, and grant additional

benefits unless claimant satisfied the criteria in the reopening

statute.

D. Application of the Reopening Statute

¶ 33

Having determined that the Director’s action was subject to

the reopening statute, we now consider whether claimant satisfied

the criteria in that statute. As the City points out, this is not a case

of fraud, overpayment, or change in condition. See § 8-43-303(1).

But the reopening statute also permits reopening on grounds of

error or mistake. Id. The City argues that claimant didn’t satisfy

either of those two reopening grounds. We conclude, however, that

we cannot resolve this issue on the record before us.

¶ 34

The Director or the ALJ, when presented with a request to

reopen, “has broad discretionary authority to determine if a

claimant has met [their] burden of proof in support of reopening.”

Justiniano v. Indus. Claim Appeals Off., 2016 COA 83, ¶ 9. The

authority to reopen an award is permissive, and the decision

17

whether to grant such relief when the statutory criteria have been

satisfied is a matter left to the sound discretion of the Director or

the ALJ. See id.

¶ 35

But the Director’s order extending the show cause deadline

and effectively reopening the award didn’t consider whether the

statutory criteria were satisfied or whether, based on those criteria,

reopening was warranted. Instead, apparently assuming his

actions were within his ordinary discretionary authority, the

Director addressed only whether claimant’s filings demonstrated

good cause to grant an extension of time. Likewise, because they

concluded the Director had discretionary authority to reopen the

claim without resort to the reopening statute, neither the ALJ nor

the Panel considered the criteria in the statute.

¶ 36

Therefore, neither the Director’s order nor the decisions of the

ALJ and the Panel reviewing that order include any findings as to

whether reopening is warranted based on an error or mistake. The

City contends that under these circumstances the Director’s order

is insufficient because it doesn’t articulate a lawful basis for

reopening. With that contention we agree.

18

¶ 37

The City also contends, though, that we should determine, as

a matter of law, that claimant failed to establish sufficient grounds

for reopening. The City cites prior decisions that have applied the

term “mistake” in circumstances involving mistakes of fact, like

misdiagnoses, see, e.g., Berg v. Indus. Claim Appeals Off., 128 P.3d

270, 273 (Colo. App. 2005), or mistakes of law, like decisions that

are inconsistent with later judicial interpretations, see, e.g., Renz v.

Larimer Cnty. Sch. Dist. Poudre R-1, 924 P.2d 1177, 1180-81 (Colo.

App. 1996). But those decisions don’t state that the term “mistake”

is limited to those particular circumstances, nor do they elucidate

what might constitute an “error” justifying reopening.

¶ 38

The City also points to Klosterman, in which a division of this

court recognized, under the predecessor to the reopening statute,

that excusable neglect is not listed among the grounds for

reopening an award. 694 P.2d at 875. The City maintains that the

actions of claimant’s counsel’s office may suggest neglect —

perhaps even excusable neglect — but that excusable neglect

cannot constitute an “error” or “mistake.”

¶ 39

But the City reads too much into the Klosterman decision. In

that case, Klosterman sought to reopen a prior determination that

19

he was individually liable as an employer of the claimant,

explaining that his failure to appear at the hearing where that issue

was resolved was “inadvertent,” resulting in part from his reliance

on advice from an attorney and his lack of receipt of some of the

notices. Id. at 874-75. The hearing officer who considered his

request found no basis for reopening and denied the request. Id. at

875. On appeal, Klosterman argued that reopening was warranted

due to excusable neglect, analogizing to the provisions of C.R.C.P.

60(b)(1) for setting aside a judgment. Id. The division disagreed,

reasoning that “[t]he statute specifically enumerates the grounds

upon which the director may reopen an award” and “[e]xcusable

neglect is not included among those grounds.” Id. It added that

“while considerations constituting mistake or error and excusable

neglect may sometimes overlap, we do not consider them to be

synonymous.” Id. at 876.

¶ 40

Ultimately, the division relied on the fact that, irrespective of

whether Klosterman’s conduct might be considered excusable

neglect, the Industrial Commission had determined that it wasn’t

an error or mistake that warranted reopening:

20

Under the [Act], the director of the Division of

Labor and the Industrial Commission have the

authority and discretion to determine whether

an error or mistake has been made and if so

whether it is the type of error or mistake which

warrants a reopening. It is apparent here that

the Commission did not consider Klosterman’s

inaction after he obtained counsel, 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, to be

the type of mistake which would entitle him to

a reopening. We perceive no abuse of

discretion in this determination and, hence,

may not disturb it on review.

Id. (citation omitted).

¶ 41

Here, however, the Director (and the ALJ and Panel on review)

didn’t consider whether claimant had established an error or

mistake that warranted reopening. The ALJ did indicate that

Klosterman was factually distinguishable, citing claimant’s

timeliness in filing his first two hearing requests, the City’s notice

that the issue of PPD was disputed, and the lack of any prejudice to

the City. But because the ALJ (like the Director and the Panel)

assumed the reopening statute didn’t apply, the ALJ didn’t actually

resolve the question of whether claimant had established an error

or mistake that warranted reopening.

21

¶ 42

We also are not persuaded by the City’s reliance on Goodman

Associates, LLC v. WP Mountain Properties, LLC, 222 P.3d 310 (Colo.

2010). In that case, the supreme court reviewed a trial court order

setting aside a default judgment under C.R.C.P. 60(b)(1), which

permits a court to set aside a judgment on the basis of mistake,

inadvertence, surprise, or excusable neglect. Id. at 315; see also

C.R.C.P. 60(b)(1). In that context, the court distinguished the terms

“mistake” and “excusable neglect,” concluding that the basis on

which the defendant sought relief — a failure to attend to the

documents on his desk — was a matter of “neglect,” not “mistake.”

Goodman Assocs., 222 P.3d at 318-19. It then went on to conclude

that the circumstances couldn’t support a finding that the neglect

was excusable. Id. at 319-23.

¶ 43

We are not prepared to conclude, as a matter of law, that the

facts of this case cannot support a finding of error or mistake. The

City hasn’t offered a definition of “error” or explained why the

Director couldn’t conclude that reopening was warranted on that

basis. It’s also not entirely clear that “mistake” has the same

meaning in the reopening statute as in Rule 60(b)(1). After all, Rule

60(b)(1) includes the terms “inadvertence,” “surprise,” and

22

“excusable neglect” along with “mistake” as bases for ordering relief

from a judgment, thus suggesting that, in that context, each term

means something different. See Lombard, 187 P.3d at 571 (in

statutory construction, “we give effect to every word and render

none superfluous”). The same isn’t true of the reopening statute.

¶ 44

And, ultimately, we will defer to the Panel’s interpretation of

these provisions if it is reasonable, see SkyWest Airlines, ¶ 32, and

we recognize that the decision whether to reopen an award is within

the discretion of the Director or the ALJ presented with the request,

see Justiniano, ¶ 9. Thus, this is a question that should in the first

instance be directed to the Director or the ALJ.

¶ 45

We therefore conclude that the matter must be remanded to

the Director or the ALJ to determine whether claimant established

grounds for reopening under the reopening statute.

III. Conclusion

¶ 46

The order is set aside and the case is remanded to the Panel

with directions to return it to the Director or the ALJ for additional

findings to determine whether claimant established a basis for

reopening the award.

JUDGE RICHMAN and JUDGE HARRIS concur.