Youngs v. Industrial Claim Appeals Office

2013 COA 54, 316 P.3d 50, 2013 WL 1459528, 2013 Colo. App. LEXIS 508
CourtColorado Court of Appeals
DecidedApril 11, 2013
DocketNo. 12CA0257
StatusPublished
Cited by2 cases

This text of 2013 COA 54 (Youngs v. Industrial Claim Appeals Office) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Youngs v. Industrial Claim Appeals Office, 2013 COA 54, 316 P.3d 50, 2013 WL 1459528, 2013 Colo. App. LEXIS 508 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE HAWTHORNE

{1 In this workers' compensation action, claimant, Patrick Youngs, seeks review of a final order of the Industrial Claim Appeals Office (Panel) that (1) considered a June 27, 2011 order issued by administrative law judge (ALJ) Cain granting partial summary judgment to employer, White Moving and Storage, Inc., and dismissing claimant's petition to reopen based on fraud; and (2) reviewed a July 18, 2011 order issued by ALJ Jones denying and dismissing claimant's petition to reopen based on worsening condition. The Panel held that it lacked jurisdiction to review ALJ Cain's order because it was an interlocutory order and claimant failed to file his petition to review that order within the applicable twenty-day statutory time period after ALJ Jones's final order entered. It affirmed ALJ Jones's order, rejecting claimant's evidentiary and due process challenges. We affirm.

I. Procedural History

2 This is claimant's third appeal arising from his 2005 workers' compensation claim. See Youngs v. Indus. Claim Appeals Office, 2012 COA 85, 297 P.3d 964; Youngs v. Indus. Claim Appeals Office, 2009 WL 3863413 (Colo.App. No. 08CA2209, Nov. 19, 2009) (not published pursuant to C.A.R. 85(F)).

13 Claimant sustained an admitted, work-related injury to his left shoulder in 2005. His authorized treating physician (ATP) placed him at maximum medical improvement (MMI) in 2006.

'I 4 In March 2011, elaimant filed a petition to reopen his claim based on worsening condition (pain in his right arm allegedly caused by its overuse after the injury to his left arm) [54]*54and fraud (employer failed to disclose its insurer's financial relationship with the medical group retained to perform the division-sponsored independent medical examination (DIME)).

T5 Employer and its insurer, Pinnacol (collectively employer), sought an order dismissing the fraud claim. Employer argued that claimant could not establish the requisite fraud elements to support his request to reopen on that basis. ALJ Cain agreed and dismissed claimant's fraud claim.

T6 A hearing was later conducted by ALJ Jones on claimant's worsening condition claim. After receiving testimony from claimant and employer's retained independent medical examination (IME) physician, ALJ Jones found the IME physician credible and persuasive and discredited claimant's testimony as "implausible, inconsistent, and unsupported by the medical records." She concluded that elaimant had not established that his right arm pain was causally connected with his left arm injury, and therefore denied and dismissed his petition to reopen based on worsening condition.

T7 Claimant filed his petition to review ALJ Cain's order on July 15, 2011. He filed his petition to review ALJ Jones's order on July 18, 2011. The Panel affirmed ALJ Jones's order, but determined that it lacked jurisdiction to review ALJ Cain's order. This appeal followed.

II. ALJ Cain's Order

T8 Claimant contends that the Panel improperly determined that it lacked jurisdiction to review ALJ Cain's order. He argues that his petition to review was filed timely and therefore the order should have been reviewed and ultimately set aside. We disagree.

A. Pertinent Facts

T9 Claimant filed his petition to review ALJ Cain's order before ALJ Jones issued her final order. After ALJ Jones issued her final order, claimant filed a second petition to review that order. Claimant did not mention ALJ Cain's earlier order in the second petition.

T 10 The Panel dismissed claimant's appeal of ALJ Cain's order, holding that the order was interlocutory and claimant had failed to file his petition to review it within the applicable twenty-day statutory time period after it became final. The following chronology illustrates the basis of the Panel's holding.

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B. Governing Law

Pursuant to section 8-43-301(2), C.R.S.2012, a petition to review an order of an ALJ "shall be filed within twenty days after the date of the certificate of mailing of the order." (Emphasis added.) But review [55]*55by the Panel and this court is limited to orders that require "any party to pay a penalty or benefits or den[y] a elaimant any benefit or penalty." Id. "The term 'final order' has 'traditionally been interpreted as including only those orders that grant or deny benefits or penalties." Jefferson Cnty. Pub. Sch. v. Indus. Claim Appeals Office, 181 P.3d 1199, 1200 (Colo.App.2008) (quoting Ortiz v. Indus. Claim Appeals Office, 81 P.3d 1110, 1111 (Colo.App.2003)).

112 "Where an order neither awards nor denies benefits, it is merely interlocutory and is 'not ripe for appellate review"" - Flint Energy Servs., Inc. v. Indus. Claim Appeals Office, 194 P.3d 448, 450 (Colo.App.2008) (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868 P.2d 1158, 1163 (Colo.App.1994)). However, "an interlocutory order becomes reviewable when appealed incident to or in conjunction with an otherwise final order." BCW Enters, Ltd. v. Indus. Claim Appeals Office, 964 P.2d 588, 537 (Colo.App.1997).

1138 A party that misses the twenty-day statutory time limit for filing a petition for review is jurisdictionally barred from obtaining further review of the order. See Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, 24 P.3d 1, 2 (Colo.App.2000) ("The statutory time limits governing appellate review of workers' compensation decisions are jurisdictional."); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1198, 1194 (Colo.App.1991) ("The timely filing of a petition to review is a jurisdictional requirement. ..."). "[Albsent the filing of a timely petition to review, the Panel lacks jurisdiction to review the ALJ's order." Brodeur v. Indus. Claim Appeals Office, 159 P.3d 810, 812 (Colo.App.2007). Moreover, "[blecause filing requirements are jurisdictional, such statutory provisions must be strictly construed." - Schneider Nat'l Carriers, Inc. v. Indus. Claim Appeals Office, 969 P.2d 817, 818 (Colo.App.1998).

C. Claimant Must File a Petition to Review

114 Claimant first contends that the Panel erred in holding that it did not have jurisdiction to review ALJ Cain's order. He argues that (1) because ALJ Cain's order was an interlocutory order, it was not final for purposes of appeal and therefore a petition to review it was not required, and (2) his timely appeal of ALJ Jones's final order included ALJ Cain's order. To the extent claimant argues 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, we disagree.

T 15 We know of no authority, and claimant cites none, that relieves a party from filing a timely written petition to review that identifies the alleged errors in the order or orders of which the party seeks review.

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Bluebook (online)
2013 COA 54, 316 P.3d 50, 2013 WL 1459528, 2013 Colo. App. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/youngs-v-industrial-claim-appeals-office-coloctapp-2013.