W.C. No. 4-280-294.Industrial Claim Appeals Office.
October 18, 2005.
FINAL ORDER
The claimant seeks review of an order dated March 17, 2005 of Administrative Law Judge Matoon (ALJ) that denied claimant’s request to reopen. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained a compensable back and right leg injury on October 10, 1995. The claimant received authorized medical care, eventually including three surgeries. The claimant was given work restrictions, placed at maximum medical improvement (MMI) and the respondent admitted for permanent impairment based on the authorized treating physician’s evaluation.
The final admission of liability contains a “Notice to Claimant” that the case will be automatically closed as to the issues admitted unless the claimant objects in writing within sixty days of the date of the final admission. The claimant in his post-hearing position statement admitted that the claimant’s former counsel did not object to the admission. The position statement of respondent also maintained that the claimant failed to object to the admission. The claimant then filed a supplemental post-hearing position statement that had a letter attached which purported to object to the admission. The ALJ specifically found that the claimant did not object to the admission.
After the admission was filed the claimant’s condition deteriorated and it was found he had developed a pseudoarthrosis (a false joint caused by the failure of the bones to fuse) at the L4-5 level in his back. On conflicting medical evidence the ALJ found that the claimant regularly engaged in heavy activity that was outside his permanent work restrictions and that this led to the pseudoarthrosis. The ALJ further found that the claimant’s condition was not related to his work for respondents and that it was not a natural progression of his industrial injury. Finding the claimant had not demonstrated that his change of condition was the natural and proximate consequence of his industrial injury the ALJ dismissed the claimant’s request to reopen.
On review the claimant argues that the claim was not closed and therefore he need not comply with the requirements of the Workers’ Compensation Act necessary to reopen his claim. On the issue of whether the case was closed or not, the claimant contends that this question is one of law and its resolution depends upon which version of §8-43-203(2)(b) C.R.S, is applicable. Section 8-43-203(2)(b) is that part of the Worker’s Compensation act that sets forth the actions claimants must take following the filing of an admission to prevent closure of their claims. This case deals with events occurring over a span of years and changes to § 8-43-203(2)(b) were made from the time of the claimant’s accident in 1995 to the time the admission was filed on August 2, 2002. The 1995 version of § 8-43-203(2)(b) only required a claimant to file a written objection in 60 days to prevent closure of the claim. The 2002 version of § 8-43-203(2)(b) required a claimant to apply for a hearing to prevent closure of the claim. We disagree with the claimant’s allegation that it is undisputed that he filed a timely objection to the admission. Therefore, we do not need to decide the issue of which version of §8-43-203(2)(b) is controlling in this case.
In our view there was a material dispute regarding whether the claimant filed a timely objection to the admission and the ALJ resolved this issue against him by finding that he had not objected to the admission. The respondent argues that although the claimant asserted that an objection had been filed, there was no evidence admitted at hearing to support the claimant’s assertion. The respondent further contends that the letter ostensibly objecting to the admission was not introduced as evidence at hearing but rather merely attached to a supplemental post-hearing position statement and so the ALJ properly did not consider it. We agree with respondent.
We perceive no basis on which to interfere with the ALJ’s finding that there was no timely objection made to the admission. Parties are expected to introduce all their evidence at the appointed hearing and on that evidence, so introduced, a decision is to be made. Frank v. Industrial Comm’n, 96 Colo. 364, 43 P.2d 158 (1935). An ALJ has wide discretion to determine whether, after the apparent conclusion of the proceedings, it is appropriate to reopen the matter for the taking of additional evidence. § 8-43-207(1)(j), C.R.S. 2005; § 8-43-301(5), C.R.S. 2005; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). The legal standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ’s determination exceeds the bounds of reason. Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). Claimant has not sought to reopen the matter and has offered no reason why the letter could not have been timely introduced into evidence. The ALJ either rejected the letter, implicitly determining that good cause for the attempted late introduction into evidence of the letter was not established, or simply found the letter unpersuasive. In either event no abuse of discretion has been shown. IPMC, supra.
The claimant neither timely objected to the admission nor, as admitted by the claimant, did he timely request a hearing. Therefore, it is immaterial which version of § 8-43-203(2)(b) controls this case since the claimant failed to comply with either version and so his claim was closed.
Having found that the claim was closed, the only issue remaining for the ALJ’s determination was whether it should be reopened pursuant to §8-43-303(1) C.R.S. 2005. We do not understand the claimant to argue on appeal that the ALJ abused her discretion or otherwise erred in refusing to reopen the claim. In any event, we have reviewed the ALJ’s findings of fact and the order. The findings are sufficient to permit appellate review, and they are supported by substantial evidence in the record. Further, the ALJ’s findings support the pertinent conclusions of law and the order denying the claimant’s request to reopen. Therefore, we conclude that the claimant has failed to establish any reversible error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 17, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Thomas Sack, Penrose, CO, Resource Management Systems, Inc., Greenwood Village, CO, Richard M. Lamphere, Esq., Colorado Springs, CO, (For Claimant).
Steven J. Picardi, Esq., Arvada, CO, (For Respondent).