W.C. No. 3-805-137Industrial Claim Appeals Office.
January 2, 1997
FINAL ORDER
The claimant seeks review of a final order issued by the Director of the Division of Workers’ Compensation (Director), dated July 21, 1994, which closed the claim for lack of prosecution. We affirm.
The record reveals that the claimant suffered a compensable left knee injury on October 13, 1982. The claimant applied for a hearing on the issues of temporary and permanent disability, which was scheduled for February 14, 1990. The claimant did not attend the hearing and it was not reset. Subsequently, the respondents filed an application for hearing on the issue of permanent disability. A hearing was scheduled for January 24, 1992, which the claimant attended. However, the ALJ granted the claimant’s request for a continuance. The hearing was not reset as of February 1994, when the respondents filed a “Motion to Dismiss” the claim for lack of prosecution.
On February 11, 1994, Former Director Platt issued an Order requiring the claimant to show cause why the claim should not be closed for lack of prosecution. Having received no response to the show cause order, the Director closed the claim in an order dated March 29, 1994. However, after receiving the claimant’ pro se objection dated April 18, 1994, the Director set aside the March 29 order and granted the claimant another thirty days to show cause why the claim should not be closed. On July 21, the Director found that the claimant had failed to show good cause why the claim should not be closed, and therefore, the Director closed the claim. The Director’s Order was mailed July 25, 1994. On June 21, 1996 the claimant filed a pleading entitled “Petition to Review” the Director’s order.
Initially, we reject the respondents’ contention that we lack jurisdiction to consider the claimant’s challenge to the Director’s order because the claimant failed to file a petition to review within twenty days of July 25, 1994, as required by § 8-43-301(2), C.R.S. (1996 Cum. Supp.). Admittedly, the claimant did not file his “Petition to Review” within the time prescribed by § 8-43-301(2). However, the record contains a letter from the claimant to the Division of Workers’ Compensation (Division) dated August 5, 1994, which was received by the Division on August 11, 1994. The letter sets forth the claimant’s objection to the closure of his claim and the reasons he wants the claim to remain open. We conclude that the August 5 letter constitutes a sufficient, timely notice of the claimant’s dissatisfaction with the Director’s order and his desire to contest the Director’s decision. Therefore, we conclude that the claimant satisfied the statutory requirement for a timely petition to review, and shall proceed to consider the claimant’s substantive arguments. See Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970).
The claimant contends that there is no statute or procedural rule which allowed the Director to close a 1982 injury claim for lack of prosecution. Therefore, the claimant contends that the Director’s order closing the claim is void ab initio. In support, the claimant notes that the statutory language currently codified at § 8-43-207(1)(n), C.R.S. (1996 Cum. Supp.), which allows the Director to dismiss a claim for failure to prosecute, was enacted by Senate Bill 91-218 (SB 218). The claimant also notes that SB 218 expressly applies to industrial injuries occurring on or after July 1, 1991. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Furthermore, the claimant contends that the procedural Rule X, 7 Code. Colo. Reg. 1101 at 37 (1992), which allows the Director to close a claim for lack of prosecution was adopted to implement the provisions of SB 218, and thus, the claimant argues that the 1992 version of Rule X only authorizes the closure of SB 218 claims. We disagree.
We do not dispute the claimant’s assertion that his claim is subject to the law as it existed prior to the effective date of SB 218. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988) (rights and liabilities of parties governed by the law in effect at the time of the injury). However, we disagree that there was no statutory or procedural authority to close a claim for lack of prosecution prior to SB 218.
The statutory requirements for closing a workers’ compensation claim are generally procedural. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Furthermore, unless a contrary intent is expressed by the General Assembly, statutory amendments to procedural requirements apply to all cases pending at the time of the amendment. See Kinninger v. Industrial Claim Appeals Office, supra.
Former section 8-43-207(1)(n), C.R.S. (1990 Cum. Supp.), which was enacted in 1988 by Senate Bill 88-1141 (SB 1141), provided that “once an application for hearing” has been filed “whether or not an actual hearing has occurred,” the director may “dismiss all issues indicated on the application for hearing” if there has been no activity in the claim for at least six months. 1988 Colo. Sess. Laws, ch. 50, section 3 at 386, effective July 1, 1988. Unlike SB 218, the General Assembly did not expressly limit the application of the 1988 amendments to §8-43-207(1)(n).
We also note that in Quintana v. MCE Service And Supply Co., W.C. Nos. 2-772-119 3-629-495, October 12, 199 , aff’d Quintana v. MCE Service Support Co., (Colo.App. No. 90CA1881, November 14, 1991) (not selected for publication), the court of appeals agreed with our conclusion that former §8-43-207(1)(n) was “procedural or remedial in nature.” Consequently, the court held that the 1988 amendments to §8-43-207 were applicable to a 1974 injury claim which was still pending in 1990. The Quintana court also construed §8-43-207(1)(n) as allowing an ALJ to close a claim where no action had been taken for at least six months following a hearing, but prior to an order being entered on the issues which were endorsed for adjudication.
Similar to Quintana, this claim involves the closure of a claim after the filing of an application for hearing, but prior to the entry of an order on the issues endorsed on the application. We perceive no basis to treat this claim differently than the court treated the circumstances i Quintana. Therefore, we conclude that the Director did not act in excess of his statutory authority in closing the claim for failure to prosecute.
We also note that that there was a procedural rule allowing the Director to close claims for lack of prosecution prior to the enactment of SB 218. In 1983 the former Industrial Commission [abolished July 1, 1986, 1986 Colo. Sess. Laws, ch. 64 at 463] enacted Rule X, 7 Code Colo. Reg. 1101-3 at 19 (adopted October 5, 1983, effective November 30, 1983, 6 CR 11). The Industrial Commission adopted Rule X pursuant to its broad authority under former § 8-46-108 C.R.S. (1973 Vol. 3), to “adopt reasonable and proper rules and regulations as relative to the administration” of the Workers’ Compensation Act. See
1981 Colo. Sess. Laws. ch. 78 at 457; Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983); Saxton v. Industrial Commission, 41 Colo. App. 309, 584 P.2d 638
(1978); cf. Lucero v. Climax Molybdenum Co., 732 P.2d 642
(Colo. 1987) (Industrial Commission did not act in excess of authority in adopting rule requiring that petition to reopen be accompanied by medical report showing change of condition). Former Rule X provided that the “Dismissal or closure of files may occur at the discretion of the director in those cases in which no action has occurred in the previous twenty-four (24) months or longer.”
The 1983 version of Rule X was not deleted or amended prior to being replaced in 1992. See Workers’ Compensation Rules of Procedure pp. 1-85 enacted January 22, 1992, effective March 1, 1992. Consequently, to the extent that the 1992 version of Rule X was enacted by the Director to implement the provisions of the SB 218, and the claimant argues that its application is limited to SB 218 injuries, it follows that pre-SB 218 injuries are governed by the 1983 version of Rule X.
IT IS THEREFORE ORDERED that the Director’s order dated July 21, 1994, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 2, 1997 to the following parties:
J.C. Rivale, P.O. Box 26, Campo, CO 81029
Tom Kelly, Delaware North Companies, Inc., One Delaware North Plaza, 438 Main St., Buffalo, N.Y. 14202
Lisa Hansen, Crawford Co., 7000 S. Yosemite, Ste. 150, P.O. Box 6502, Englewood, CO 80155-6502
Christie de Balbine, Crawford Co., One International Blvd., Ste. 300, Mahwah, NJ 07495
Ralph Ogden, Esq., 1750 Gilpin St., Denver, CO 80218 (For the Claimant)
Karen Gail Treece, Esq. John R. Haberland, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
BY: _______________________