W.C. No. 4-528-268.Industrial Claim Appeals Office.
May 27, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated December 22, 2010 that denied the claimant’s petition to reopen. We affirm.
A hearing was held on the issues of whether the claimant’s petition to reopen should be granted and the related issue of whether the petition was barred by the applicable statute of limitations. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On October 22, 2000 the claimant, who worked as a pharmacy tech, reported that she injured the left side of her neck while cradling a telephone receiver against her ear. The employer referred her to Dr. Burke for medical treatment and he diagnosed left sided facet syndrome of the C4-5 and C5-6 levels of the cervical spine. He saw the claimant on November 27, 2000, when he diagnosed myofascial pain and recommended physical therapy. The claimant then returned to Dr. Burke on December 3, 2002 and he recommended chiropractic treatment. He placed the claimant at maximum medical improvement on June 2, 2003, with permanent impairment equal to ten percent of the whole person. The claimant obtained a Division-sponsored independent medical examination (DIME), which was performed by Dr. Ryan. Dr. Ryan evaluated her in 2003 and 2005, and determined both times that she had not reached maximum medical improvement. On April 8, 2008 he determined that she had reached maximum medical improvement on September 29, 2005. He recommended no maintenance medical treatment and reported that she had permanent impairment equal to 15 percent of the whole person. The respondent filed a final admission of liability on May 9, 2008, admitting for permanent partial disability benefits based upon Dr. Ryan’s rating. Although the respondent paid those benefits in a lump sum on May 9, 2008, the ALJ calculated that had they been paid periodically, the last
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payment would have been made on April 22, 2007. The respondent last paid for medical benefits on September 29, 2005, since they denied medical benefits after maximum medical improvement.
The ALJ found that the claimant filed her petition to reopen on August 3, 2010. Since that was more than two years after the date the last medical benefits were paid and the date compensation was last payable, the ALJ concluded that the petition to reopen was untimely under § 8-43-303(2)(a), C.R.S.
The claimant appealed and sets forth a version of the facts surrounding this claim, apparently asserting that her petition to reopen based on a worsened condition should have been granted. However, we have reviewed the record and considered the claimant’s arguments and we perceive no error or abuse of discretion in the ALJ’s order.
Section 8-43-303(1), C.R.S. affords broad discretion to reopen an award under certain circumstances. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996). However, a petition to reopen a claim is subject to time limitations and must be filed within six years of the date of injury, section 8-43-303(1), C.R.S., or within two years of the last payment of benefits or compensation, section 8-43-303(2), C.R.S., on the ground of fraud, overpayment, error, mistake, including mistakes of law, or change in condition. § 8-43-303; Calvert v. Industrial Claim Appeals Office, 155 P.3d 474, 476-77 (Colo. App. 2006) (two-year statute of limitations begins to run from date of last disability payment; even if a change of condition manifests itself after statute of limitations expires, petition to reopen is barred by express language of statute); Thye v. Vermeer Sales Serv., 662 P.2d 188, 190 (Colo. App. 1983) (six-year statute of limitations for petitions to reopen workers’ compensation claims begins to run from date of injury); See Feeley v. Industrial Claim Appeals Office 195 P.3d 1154 (Colo. App. 2008).
As we understand the claimant’s argument, she may also dispute certain of the ALJ’s factual findings, especially concerning the dates that compensation and benefits were paid. However, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995). Here, the ALJ’s factual findings concerning the date of the filing of the petition to reopen, and the dates on which compensation and benefits were last paid or payable are supported by substantial evidence in the record. Thus, we are bound by the factual findings in this regard.
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Those factual findings support the ALJ’s conclusion that the claimant’s petition to reopen was untimely under § 8-43-303(1). As the ALJ correctly noted, the petition was filed in excess of two years after the last medical benefits and permanent partial disability benefits were paid. The ALJ’s factual findings are supported by substantial evidence and we perceive no legal error in his order. Therefore, there is no basis on which to disturb it See Section 8-43-301(8), C.R.S. (panel may only set aside order where findings are not sufficient to permit appellate review, where conflicts in the evidence are not resolved, where findings are not supported by substantial evidence, where findings do not support the order, or where the order is not supported by applicable law).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 22, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Curt Kriksrum
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VICTORIA EICHSTEDT, NO. 4G, FORT COLLINS, CO, (Claimant).
THOMAS, POLLART MILLER, LLC, Attn: STACY J. TARLER, ESQ., 5 GREENWOOD VILLAGE, CO, (For Respondents) SEDGWICK CMS, Attn: SHARMIE JENSEN, P O BOX 14485, LEXINGTON, KY, (Other Party).
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