IN THE MATTER OF THE CLAIM OF GREGORY CHAMBERS, Claimant, v. CONCRETE FRAME ASSOCIATES, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-784-053.Industrial Claim Appeals Office.
June 24, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated March 9, 2010, that denied and dismissed claims for compensation and penalties. We affirm.

The claimant suffered an industrial injury to his left foot and ankle on March 31, 2008. The claimant underwent a Division-sponsored independent medical examination (DIME). On August 13, 2009, the respondents filed a final admission based on the opinion of DIME physician. The claimant timely filed an objection to the final admission. On his objection form, the claimant checked the box next to the section stating that he would mail or deliver an application for hearing form on disputed issues to the Office of Administrative Courts within thirty calendar days of the date of the final admission. However, the claimant did not file his application for hearing until September 21, 2009, or thirty-nine days after the final admission was filed. The ALJ determined that the claimant’s application for hearing was not timely filed.

The ALJ determined that while the claimant timely filed his objection to the final admission of liability, he failed to timely file an application for hearing on any disputed issues that were ripe for hearing pursuant to § 8-43-203(2)(b)(II). The ALJ, citing § 8-43-203(2)(b)(II), C.R.S and Ballesteros v. Westaff, Inc. W.C. No. 4-475-838 (November 24, 2008), determined that the claimant’s claim was closed and the claimant did not endorse the issue of reopening. Therefore, ALJ determined that, without a petition to reopen, she was without jurisdiction to consider the claim.

The claimant has not filed a brief in support of his petition to review and,

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therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). He has also failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).

As we understand the claimant’s Petition to Review, he does not challenge the ALJ’s findings of fact concerning the objection he filed to the final admission of liability, or his failure to timely file an application for hearing on any disputed issues. Rather the claimant makes arguments regarding the extent of his injury and errors he contends are contained in the medical record.

Section 8-43-203(2)(b)(II), C.R.S. provides that after a final admission of liability has been filed with the Division, the case will be automatically closed as to the issues admitted in the FAL if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues. In our view Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 264 (Colo. App. 2004) is dispositive. I Peregoy the court ruled that a claimant has thirty days after the date the employer files an FAL to file an Application for a Hearing under § 8-43-203(2)(b)(II) or the claim automatically closes.

The automatic closure of issues raised in an uncontested FAL is “part of a statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to an injured worker without the necessity of a formal administrative determination in cases not presenting a legitimate controversy.” Leewaye v. Industrial
Claim Appeals Office 178 P.3d 1254 (Colo. App. 2007). Once a case has automatically closed by operation of the statute, the issues resolved by the FAL are not subject to further litigation unless they are reopened pursuant to § 8-43-303, C.R.S. Berg v. Industrial Claim Appeals Office, 128 P.3d 270, 272 (Colo. App. 2005). Therefore, in our opinion the case was closed by operation of the statute following the filing of the FAL and the failure of the claimant to timely file an Application for a Hearing under § 8-43-203(2)(b)(II). Consequently, we perceive no error in the ALJ’s determination to dismiss the identified claims for compensation and penalties.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 9, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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GREGORY CHAMBERS, DENVER, CO, (Claimant).

CONCRETE FRAME ASSOCIATES, INC., Attn: MS CRYSTAL GRULE, AURORA, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).

RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: ALEXANDRA E. COLEMAN, ESQ., DENVER, CO, (For Respondents).

PINNACOL ASSURANCE, Attn: MS MYRNA VALENCIA, DENVER, CO, (Other Party).

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