W.C. Nos. 4-197-919; 4-100-970.Industrial Claim Appeals Office.
December 2, 2004.
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant’s Petition to Reopen the above captioned claims was barred by the statute of limitations currently codified at § 8-43-303 C.R.S. 2004. We affirm.
In 1991 the claimant sustained a compensable occupational disease which is the subject of W.C. No. 4-100-970. In 1993 the claimant suffered a second occupational disease. That injury is the subject of W.C. No. 4-197-919.
Ultimately, the claimant entered into an agreement for the full and final settlement of the claims. The settlement was approved by ALJ Harr on July 21, 1999, and in August 1999, the respondent issued a final payment notice consistent with the terms of the settlement.
On December 22, 2003, the claimant petitioned to reopen the claims and alleged a change of condition. However, the ALJ determined the claims were barred from reopening under § 8-43-303 and therefore denied the petition to reopen. The claimant timely filed a Petition to Review.
The Petition to Review contains only general allegations of error. See
§ 8-43-301(8), C.R.S. 2004. Further, the claimant has not filed a brief in support of the Petition to Review. Consequently the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
Section 8-43-303(1), C.R.S. 2004, provides that a claim may be reopened within six years after the date of injury upon proof of a change of condition which entitles the claimant to additional benefits. Subsection 8-43-303(2)(a) allows a claim to be reopened within two years of the date the last temporary or permanent disability benefit has become due or payable. However, neither statute applies to “settlements entered into pursuant to section 8-43-204 in which the claimant waived all right reopen an award.” Instead, the statutes provide that a settlement to be reopened “at any time on the ground of fraud or mutual mistake of material fact.”
We conclude as a matter of law that the July 1999 settlement was “entered into pursuant to section 8-43-204.” Furthermore, the settlement agreement provided that in exchange for a lump sum payment the claimant waived the right to reopen the award except on the ground of fraud or mutual mistake of material fact. (See Respondents’ Hearing Exhibits H and I). Consequently, the ALJ did not error in finding the claims were barred from reopening based on a change of condition. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997) (it is proper to affirm orders which reach the correct result for the wrong reason); Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997)
We also note that neither the Petition to Reopen nor the claimant’s Application for Hearing alleged fraud or mutual mistake of material fact. Moreover, the claimant did not provide a transcript of the hearing on June 1, 2004. Therefore, the record is legally insufficient to establish that an allegation of fraud or mutual mistake was tried by consent at the June 1, 2004 hearing. See Hanna v. Print Expediters Inc., 77 P.3d 863
(Colo.App. 2003), Elliott v. El Paso County, 860 P.2d 1363 (Colo. 1993) (burden on appealing party to provide record justifying reversal). Consequently, the ALJ did not err in denying the petition to reopen. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 21, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Mary L. Gaitan, Greeley, CO, Conagra Beef Company, Insurance and Loss Control Dept., Omaha, NE, Kathryn Kaeble Todd, Esq. T. Paul Krueger II, Esq., Denver, CO, (For Respondent).