W.C. No. 3-114-127Industrial Claim Appeals Office.
November 19, 2003
ORDER OF REMAND
The pro se claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied and dismissed the claimant’s request to reopen the claim. The claimant contends the ALJ erred in ruling that the request is barred by the statute of limitations for reopening. We set the order aside and remand for further proceedings. .
The claimant sustained a compensable injury in 1994. The respondents admitted liability and paid for repair of a tooth. In May 1995, the respondents filed an uncontested Final Admission of Liability (FAL). In April 1998, the respondents again paid for the tooth to be repaired.
In April 2003, the claimant filed an application for hearing on the issues of medical benefits to repair the tooth and “reopening.” The respondents filed a motion to dismiss alleging the facts set forth above, and arguing the claim is barred by the statute of limitations for reopening set forth in § 8-43-303, C.R.S. 2003. In this motion, the respondents represented that in 1998 they “voluntarily reopened only as to medical benefits for the repair of claimant’s tooth.” They further represented the treatment was “minor” and would not have warranted reopening the claim.
The claimant replied to the motion stating that the repair of the tooth was “again breaking down” and attaching an April 1998 report from his dentist stating that the 1994 filling “seems to be breaking down and is in need of replacement.” The report further sated there “is no way of telling how long restoration will” last.
On July 3. 2003, the ALJ entered an order dismissing the claim with prejudice. The order contains no findings of fact or conclusions of law.
On review, the claimant states that “in response to the repair job done 4-1-98 I feel it was significant and my case should have been reopened.” The respondents rely on § 8-43-303, and argue that their action in paying for repair of the tooth in 1998 is of no significance. We set the order aside and remand for further proceedings because the findings are insufficient to support appellate review and because the ALJ may have misapplied the law in dismissing the claim. Section 8-43-301(8), C.R.S. 2003.
Section 8-43-303(1), C.R.S. 2003, provides that within six years after the date of injury any “award” may be reopened on the grounds of change of condition. Section 8-43-303(2)(b), C.R.S. 2003, provides that within two years after the date the last medical benefits become due and payable, the ALJ may “reopen an award only as to medical benefits” based on a change of condition. A change of condition refers to a change in the physical or mental condition caused by the original industrial injury Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002).
The applicability of the reopening statute and the corresponding statutes of limitation require that there be an “award” which closed the claim. An award which closes the claim may come in the form of a final admission of liability, an order which has not been timely appealed and addresses the claimant’s entitlement to benefits without reserving any issues, or a settlement. See § 8-43-204(1), C.R.S. 2003; Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003); Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001); Koch Industries, Inc. v. Pena, 910 P.2d 77 (Colo.App. 1995). However, if an issue has not been “closed” by a final “award,” the issue remains open for adjudication without regard to the reopening statute and corresponding period of limitation. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (where ALJ’s order reserved undecided issues claim was not closed and no petition to reopen was necessary to litigate right to additional benefits).
Here, the respondents’ motion to dismiss conceded that they “voluntarily reopened” the issue of medical benefits in April 1998 when they paid for a second tooth repair. (Respondents’ Motion To Dismiss With Prejudice, paragraph 4). To the extent the respondents “voluntarily reopened,” they necessarily admitted a worsened condition which was causally related to the industrial injury. Jarosinski v. Industrial Claim Appeals Office, supra. Further, the respondents do not argue, and we find no evidence in the record that after paying for the tooth repair in 1998, the respondents acted to again close the issue of medical benefits by filing an FAL concerning the issue, obtaining a final order, or settling the matter. Thus, we are unable to ascertain the legal basis of the ALJ’s conclusion that the statute of limitations for reopening applied to the issue of additional medical benefits in 2003. Further, the findings are not sufficient to indicate the legal and factual bases of the ALJ’s conclusion.
The respondents cite our decision in Arneson v. Kimzey Casing Service, Inc., W.C. No. 4-201-940 (June 6, 1996), as authority for upholding the ALJ’s dismissal of the claim. In Arneson, we held that the respondents’ action in paying for medical treatment after closure of the claim did not constitute a waiver of the right to require the claimant to prove the statutory grounds for reopening when the claimant sought an order requiring the respondents to pay for chiropractic treatments. We stated that “in some cases respondents might pay for medical examinations and treatment after closure in an effort to discover whether the claimant’s condition has worsened sufficiently to reopen the claim.” Thus, the respondents’ action in paying for the treatment after closure was “ambiguous” and did not constitute a waiver of the respondents’ rights under the reopening provisions.
However, in Arneson, there was no statement or evidence that the respondents intended to “voluntarily reopen” the claim at the time they paid the medical benefits. In contrast, the respondents’ motion contains such a representation in this case. Thus, we do not find Arneson to be dispositive.
In reaching this result, we should not be understood as prohibiting the ALJ from dismissing the claim based on further development of the record and entry of sufficient findings of fact and conclusions of law. We merely determine the findings are insufficient to support dismissal based on the existing state of the record.
The respondents also argue that because the claimant did not attach a medical report to his 2003 application for hearing, the ALJ was required to dismiss the petition to reopen. However, the respondents did not raise this argument to the ALJ in their motion to dismiss, and it is not properly before us. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). Moreover, failure to attach a medical report is not jurisdictional, and the ALJ may consider a petition to reopen without such a report. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 11, 2003, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this order were mailed to the parties at the addresses shown below on November 19, 2003 by A. Pendroy.
Richard Dowrey, 2904 Kennedy Ave., Grand Junction, CO 81504
Hilton Hotel, 743 Horizon Dr., Grand Junction, CO 81506-3906
Gallagher Bassett Services, Inc., P.O. Box 4068, Englewood, CO 80155-4068
Michelle N. Young, Esq., and Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1100, Denver, CO 80210 (For Respondents)