IN RE AZAR, W.C. No. 3-826-876 (08/29/01)


IN THE MATTER OF THE CLAIM OF VIENNA S. AZAR, Claimant, v. STORAGE TECHNOLOGY CORPORATION, Employer, and TRAVELERS INDEMNITY COMPANY, Insurer, Respondents.

W.C. No. 3-826-876Industrial Claim Appeals Office.
August 29, 2001

FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Felter (ALJ Felter) which determined her petition to reopen was barred by the statute of limitations. We affirm.

This claim has a lengthy procedural history which is relevant to the appeal. In September 1986, the claimant filed a claim for workers’ compensation benefits alleging that she sustained a stroke on July 13, 1984, as a result of exposure to chemicals and stress in the workplace. This claim was denominated W.C. No. 3-826-876, and was originally dismissed on August 26, 1998, for failure to prosecute.

The claimant petitioned to reopen the claim in 1992. However, on June 10, 1993, ALJ Rumler dismissed the petition finding that it was barred by the statute of limitations, and the claimant failed to present evidence which would support equitable tolling of the statute. ALJ Rumler’s finding was ultimately affirmed by the Court of Appeals.

In July 1995, the claimant filed another claim, denominated W.C. No. 4-258-860, again seeking compensation for the stroke suffered on July 13, 1984. However, by order dated April 19, 1996, ALJ Rumler denied and dismissed the claim finding it was “the same as the Claimant’s alleged claim in W.C. No. 3-826-876.”

In 1996, the claimant filed a second petition to reopen W.C. No. 3-826-876. However, ALJ Rumler denied and dismissed the petition to reopen again finding it was barred by the statute of limitations.

Following this series of events, the parties entered into an agreement for full and final settlement of both workers’ compensation claims. The settlement recites that the respondents took the position that “both of these claims have been dismissed by Orders of the Division.” Nevertheless, the respondents agreed to pay $2,500 for full and final settlement of the claims. ALJ Felter found the respondents were motivated to enter into the settlement agreement by a desire to foreclose future petitions to reopen and save litigation expenses. The settlement was approved by ALJ Rumler after a hearing was conducted on November 19, 1996.

The claimant filed a third petition to reopen W.C. No. 3-826-876, on April 22, 2000. The petition to reopen alleged a change of condition, error, and fraud. At the hearing, ALJ Felter attempted to ascertain the factual basis for the claim of fraud, but, as ALJ Felter found, the claimant’s representations made it difficult to determine the exact nature of the alleged fraud. However, the claimant was apparently alleging that the employer was “paying somebody else” for medical benefits despite representing that it was charging the claimant for “medical benefits as low as the current employees.” (Tr. p. 11-12).

ALJ Felter declined to reach the issue of whether the settlement agreement could be set aside based on fraud. Instead, he ruled the claimant’s third petition to reopen W.C. No. 3-826-876 was barred by the statute of limitations. Specifically, ALJ Felter determined the petition to reopen was filed more than six years after the date of injury (which he erroneously found was September 3, 1986 rather than July 13, 1984), and more than two years after November 19, 1996, the date the last benefits became payable under the settlement agreement. ALJ Felter further found there was no material issue of fact concerning whether or not the statute of limitations was equitably tolled based on the respondents’ alleged fraud. He reasoned that the claimant fully understood she was waiving the right to any future medical benefits when she entered into the settlement agreement and, therefore, no medical benefits were payable after November 19. Consequently, the claimant was not misled so as to delay the filing of the third petition to reopen.

On review, the claimant alleges ALJ Felter erred in dismissing the petition to reopen based on fraud. However, we perceive no error in this ruling.

Section 8-43-303(1), C.R.S. 2000, provides that a petition to reopen may be granted on grounds of fraud “at any time with in six years after the date of injury.” Section 8-43-303(2)(a), C.R.S. 2000, provides that “at any time within two years after the date the last temporary or permanent disability benefits” become payable a petition to reopen may be granted on grounds of fraud. Section 8-43-303(2)(b), C.R.S. 2000, provides that a petition to reopen may also be granted on grounds of fraud “at anytime within two years after the date the last medical benefits become due and payable.”

Here, the evidence supports ALJ Felter’s findings that the claimant did not file the April 2000 petition to reopen within six years of the date of the injury, nor within two years after the last benefits (whether considered compensation or medical) became due on November 19, 1996, the date the settlement was approved. We note that even if we assume arguendo, that the settlement agreement could be reopened on grounds of fraud, the respondents would still be free to assert their underlying defense that the claimant failed to file any claim for benefits until 1992. It has already been determined that the 1992 claim for benefits was barred by the statute of limitations.

Further, ALJ Felter correctly ruled that the claimant’s allegations provide no basis for inferring that the statute of limitations for reopening was equitably tolled by the employer’s alleged fraud in failing to pay medical benefits. Equitable tolling requires a showing that a party failed to disclose information that it was legally required to reveal, and that the other party was prejudiced by the failure to disclose the information. See Garrett v. Arrowhead Improvement Association, 826 P.2d 850 (Colo. 1992). Here, as the ALJ Felter observed, the settlement agreement unequivocally indicated the claimant could no longer expect payment of medical benefits through the workers’ compensation system. Thus, we perceive no possible basis for the assertion the claimant was misled into expecting payment of further workers’ compensation medical benefits, or that such expectation led her to wait four years after the apparent conclusion of the case to file a third petition to reopen.

We recognize ALJ Felter did not conduct an evidentiary hearing concerning the merits of the claimant’s petition to reopen. However, the ALJ afforded the claimant an opportunity to explain the factual basis for her claim of fraud, and the ALJ concluded that even if the claimant’s representations were true, they would afford no grounds for relief. Consequently, an evidentiary hearing was not necessary. See Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).

To the extent we are able to understand the claimant’s remaining arguments, the majority of them relate to proceedings which occurred previously, and these arguments have no bearing on the issues before ALJ Felter. Consequently, those arguments afford no basis for relief on this appeal. The remainder of the arguments were not made before ALJ Felter, and may not now be considered on review. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).

IT IS THEREFORE ORDERED that ALJ Felter’s order dated November 15, 2000, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Bill Whitacre

NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed August 29, 2001 to the following parties:

Vienna S. Azar, 250 W. Central Ave., #712, Brea, CA 92821

Storage Technology Corporation, 2270 S. 88th St., Louisville, CO 80028-0001

Travelers Indemnity Company, Myra L. Jelinek, The Travelers Companies, P. O. Box 173762, Denver, CO 80217-3762

Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)

BY: A. Pendroy