W.C. No. 4-439-726Industrial Claim Appeals Office.
May 5, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed a petition to reopen. We affirm.
In an order dated October 21, 2002, the ALJ found the respondents filed a Final Admission of Liability (FAL) on March 24, 2000. The petition was mailed to the claimant’s home of record, but the claimant denied receiving it. The ALJ also found the FAL was not mailed to the claimant’s attorney, but the attorney received actual notice of the FAL in January 2001 when he requested a copy of the file from the Division of Workers’ Compensation. Consequently, the ALJ concluded the claim was closed because the claimant did not object to the FAL within thirty days as required by § 8-43-203(2)(b)(II), C.R.S. 2002.
The ALJ also denied and dismissed the claimant’s petition to reopen. The ALJ ruled the petition to reopen did not comply with Rule of Procedure X (B)(2), 7 Code Colo. Reg. 1101-3 at 37, because the attached medical report did not demonstrate a worsening of condition. In any event, the ALJ found the claimant’s evidence failed to prove a worsening of condition after the claimant was placed at maximum medical improvement. (Finding of Fact 20).
The claimant filed a timely petition to review. However, the claimant did not file a brief in support of the petition to review. Therefore, the effectiveness of our review is limited.
The petition to review alleges the ALJ erred in finding the claim was closed by the FAL. The claimant asserts the ALJ should have credited his testimony that he did not receive the petition to review. Further, the claimant asserts that failure to mail the FAL to his attorney renders the FAL a nullity.
The claimant was certainly entitled to receive notice of the FAL at his home of record. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996). Where, as here, the respondents present evidence the FAL was mailed to the claimant, but the claimant denies receipt, the question of whether the respondents provided notice is one of fact for determination of the ALJ City and County of Denver v. East Jefferson Sanitation District, 771 P.2d 16 (Colo.App. 1988).
Because the issue is one of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The ALJ is under no obligation to credit testimony, even if it is unrebutted Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Here, the ALJ discredited the claimant’s testimony that he did not receive the FAL. Instead, the ALJ found the certificate of mailing made it more probable that the claimant received the FAL. We have no basis to interfere with the ALJ’s resolution of the conflicts in the evidence or the decision to discredit the claimant’s testimony.
Further, we perceive no basis for setting aside the ALJ’s determination that actual notice of the FAL to the claimant’s attorney triggered the duty to object to the FAL. It is true that an attorney is entitled to receive notice of the FAL in order to protect the claimant’s rights. Rule of Procedure XI (B)(2), 7 Code Colo. Reg. 1101-3 at 39. Further, failure to provide notice to an attorney has been held to toll the time limit for filing a petition to reopen until the claimant’s attorney received actual notice of the filing of the FAL. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). In the absence of authority to the contrary, and the claimant’s petition cites none, we decline to hold that when the claimant’s attorney receives actual notice of the filing of the FAL the duty to object is not triggered.
The claimant also contends the ALJ erred in refusing to accept “evidence of worsening of medical condition in the form of lay and medical testimony.” However, as we understand the ALJ’s order, she has ruled in the alternative. First she concluded the petition to reopen did not comply with the requirements of Rule X (B)(2) because the medical report was inadequate. Alternatively, the ALJ found the evidence was insufficient to establish a worsened condition. (Finding of Fact 20). In this respect the ALJ did not refuse to accept lay and medical evidence, she merely determined it was not of sufficient persuasive force to grant the reopening.
It was for the ALJ to assess the weight of the evidence concerning whether or not the claimant proved a worsened condition. See Cordova v. Industrial Claim Appeals Office, supra. Here, we cannot say the ALJ abused her discretion in determining that the claimant failed to prove a worsened condition. Consequently, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 21, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 5, 2003 to the following parties:
Julio Henriquez, 210 N. Country Club Dr., #5, Colby, KS 67701
John Samec, K. R. Swerdfeger Construction, Inc., 421 E. Industrial Blvd., Pueblo West, CO 81007
Valerie Doyle, Zurich N. A., P. O. Box 370308, Denver, CO 80237
Rodrigo S. Gloria, Esq., 1750 High St., Denver, CO 80218 (For Claimant)
Frank M. Cavanaugh, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: A. Hurtado