NGUYEN v. CITY AND COUNTY OF DENVER, W.C. No. 4-543-945 (12/27/2010)


IN THE MATTER OF THE CLAIM OF LESLIE TU NGUYEN, Claimant, v. CITY AND COUNTY OF DENVER, Employer, and SELF-INSURED, Respondent.

W.C. No. 4-543-945.Industrial Claim Appeals Office.
December 27, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated July 23, 2010, that determined her claim was barred from being reopened by the statute of limitations. We affirm.

The claimant suffered an industrial injury on May 21, 2002. The respondent filed a Final Admission of Liability (FAL) on April 8, 2003. The claimant did not timely object to the FAL and her claim closed. The claimant sought to reopen her claim based on a worsened condition by filing a Petition to Reopen on July 21, 2003. A hearing was held before ALJ Harr who denied the claimant’s Petition to Reopen, finding the claimant had failed to prove any worsened condition causally related to her industrial injury. The claimant filed a Petition to Review ALJ Harr’s order of December 24, 2003. On July 22, 2004 the Panel entered a Final Order affirming ALJ Harr’s order. The claimant did not appeal the Panel’s order and the claim remained closed.

The claimant filed an Application For Hearing, construed by the ALJ to be a Petition to Reopen, dated February 22, 2010. The claimant’s last medical benefit became due and payable on September 4, 2004, more than five years before the claimant’s Petition to Reopen, here under consideration, was filed.

The ALJ found that the respondent had proven, by the preponderance of the evidence, that the claimant’s current Petition to Reopen was filed more than six years from the date of her admitted injury and more than two years from the date that her last benefit was due and payable. The ALJ found the claimant had failed to prove any circumstance that would toll the running of the statute of limitations. The ALJ concluded that the respondent had proven that the claimant’s Petition to Reopen was barred by the

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applicable statute of limitations. Therefore, the ALJ denied and dismissed any and all claims for workers’ compensation benefits. The claimant brings this appeal.

In her Petition to Review, the claimant expressed disagreement with the ALJ’s order on several grounds. However, as we read the claimant’s Petition to Review, she does not directly contest any of the findings made by the ALJ that related specifically to the issue of the application of the statute of limitations.

In our view, these findings support a determination that the claim is barred by the statute of limitations. A petition to reopen a claim 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 benefit payment, 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. Indus. 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).

Here, the industrial injury occurred on May 21, 2002 and the Petition to Reopen was dated February 22, 2010, more than six years from the date of the injury. Further the claimant’s last medical benefits became due and payable on September 4, 2004, more than two years before the claimant’s current Petition to Reopen was filed on February 22, 2010. Therefore, in our opinion, the ALJ correctly found the claim was barred from reopening under the relevant statute of limitations.

We further note that in her Petition to Review, the claimant also expresses disagreement with ALJ Harr’s order of December 24, 2003. However, because the Panel’s July 22, 2004 affirming ALJ Harr’s order was not appealed it has become final and not subject to review. Section 8-43-301(10), C.R.S.

IT IS THEREFORE ORDERED that the ALJ’s order dated July 23, 2010 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curtain

______________________________ Thomas Schrant

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LESLIE TU NGUYEN, CO, (Claimant).

CITY COUNTY OF DENVER, Attn: CHRISTIAN M. LIND, ESQ., C/O: ASSISTANT.

CITY ATTORNEY, DENVER, CO, (For Respondents).

CITY AND COUNTY OF DENVER, Attn: PATRICIA LORMAN, DENVER, CO, (Other Party).

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