City &Cnty. of Denver v. Indus. Claim Appeals Office of Colo.

• Decision Date: 02 December 2021
• Docket Number: Court of Appeals No. 21CA0275
• Citation: 506 P.3d 100,2021 COA 146
• Parties: CITY AND COUNTY OF DENVER, Colorado, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Andrew Sipres, Respondents.
• Court: Colorado Court of Appeals

506 P.3d 100

2021 COA 146

CITY AND COUNTY OF DENVER, Colorado, Petitioner,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Andrew Sipres, Respondents.

Court of Appeals No. 21CA0275

Colorado Court of Appeals, Division V.

Announced December 2, 2021

Kristin M. Bronson, City Attorney, Stephen J. Abbott, Assistant City Attorney, John P. Moon, Assistant City Attorney, Denver, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Law Office of O'Toole and Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Respondent Andrew Sipres

Opinion by JUDGE GOMEZ

¶ 1 In this workers' compensation case, we are asked to determine whether the reopening statute, section 8-43-303, C.R.S. 2021, which limits the grounds on which an award may be reopened, constrains the authority of the Director of the Division of Workers' Compensation (the Division) to reopen an award that has been automatically closed for failure to prosecute. We conclude that it does.

¶ 2 The award at issue was closed automatically when claimant, Andrew Sipres, after receiving some initial benefits, failed to respond to an order to show cause why his claim seeking additional benefits shouldn't be dismissed for failure to prosecute. The Director later granted claimant additional time to respond to the show cause order, effectively setting aside the automatic closure of the award. An administrative law judge (ALJ) and the Industrial Claim Appeals Office (Panel) upheld the Director's action.

¶ 3 We conclude that the Director's action reopening the award was subject to the reopening statute. Because the Director, the ALJ, and the Panel never considered whether claimant satisfied the reopening criteria set forth in that statute, we set aside the Panel's order and remand the case to the Panel with directions to return it to the Director or the ALJ for additional findings.

I. Background

¶ 4 In 2017, claimant, a deputy sheriff for the City and County of Denver, was injured at the courthouse where he worked while remanding a defendant into custody. After the defendant became belligerent and punched claimant's colleague, claimant "tried to gain custody" of the defendant, wrestling the defendant to a table and then to the ground. When claimant landed on the ground, his left shoulder "kind of popped." He was diagnosed with a posterior labral tear, for which he underwent surgery.

¶ 5 After post-surgical treatment and physical therapy, claimant's authorized treating physician placed him at maximum medical improvement, with a 6% scheduled impairment of the left upper extremity. Claimant disagreed with the rating and requested a division-sponsored independent medical examination (DIME). The DIME physician increased his permanent impairment rating to a 16% scheduled impairment of the left upper extremity, which could be converted to an impairment rating of 10% of the whole person. In June 2018, the City filed a final admission of liability (FAL) based on the DIME physician's findings, admitting to a scheduled impairment of 16% of the left upper extremity.

¶ 6 Claimant later filed two applications for hearing, seeking to convert the admitted scheduled impairment into a whole person impairment rating, which would entitle him to increased benefits. But claimant failed to take the actions necessary to set the matter for a hearing. See Off. of Admin. Cts. Rule 8(I), 1 Code Colo. Regs. 104-3 (procedures for setting a matter for a hearing).

¶ 7 In June 2019, after six months had passed since claimant had taken any action on his claim, the City filed a motion to close the claim for failure to prosecute. On July 1, 2019, the Director issued an order to show cause requesting that claimant inform the Division and the City in writing "what recent effort [he] ha[d] made or [was] making to pursue [his] claim." The order advised that the "claim will be automatically closed" if he failed to respond within thirty days, after which he could "petition to reopen [the] claim, subject to the provisions of [ section] 8-43-303."

¶ 8 Claimant and his counsel's office received copies of both the motion and the order to show cause. But because neither claimant nor his counsel submitted a timely response, the claim was closed automatically as of August 1, 2019.

¶ 9 A few weeks later, claimant filed another application for hearing, again seeking conversion to a whole person impairment rating. In response, counsel for the City advised claimant's counsel that the claim had been closed. Claimant moved for reconsideration, indicating that neither the City's motion nor the order to show cause was in his counsel's file. He asked the Division to set aside the show cause order and set the requested hearing.

¶ 10 Claimant later supplemented his motion with additionally discovered information, including that

• claimant's counsel believed the motion and order to show cause were "purposely not placed in the file by legal assistant S.W., who no longer works for counsel";

• upon further investigation, counsel had "found that the Claimant personally received" both documents and "called S.W. at counsel's office multiple times and was assured by S.W. that this matter would be handled";

• S.W. "never informed" counsel about the pending motion; and

• "in light of [S.W.'s] conversation with the Claimant, it [wa]s clear that she knew that such Motion was filed and purposely, perhaps maliciously, failed to provide counsel with information which would have enabled him to respond to both the Motion and the Order."

¶ 11 In October 2019, the Director issued an order extending the time within which claimant could show cause why his claim should not be dismissed for failure to prosecute. The Director noted that claimant had "requested that the Order to Show Cause be set aside" and had "represented that there is a need for an extension of time to show cause why this claim should not be closed." The Director then ordered that the claim could be closed unless a hearing was held on it within 120 days.

¶ 12 Claimant set the matter for a hearing, at which the ALJ considered three issues: (1) the City's contention that the Director exceeded his authority by extending the deadline to respond to the show cause order, thus effectively reopening the award after it had been closed; (2) claimant's request to convert his impairment rating from a scheduled impairment of the upper extremity to a whole person rating; and (3) claimant's request for permanent partial disability (PPD) benefits.

¶ 13 As to the first issue, the ALJ found that the Director's October 2019 order "was a modification of the prior Order to Show Cause," which fell within the Director's statutory authority to modify orders, grant extensions of time, close claims, and otherwise manage claims. Because he concluded that the reopening statute didn't govern the Director's action, the ALJ didn't address the application of the statute, except to note that the case on which the City chiefly relied in its argument on that point, Klosterman v. Indus. Comm'n , 694 P.2d 873 (Colo. App. 1984), was distinguishable.

¶ 14 Then, as to the second and third issues, the ALJ ordered claimant's impairment rating converted to 10% of the whole person and awarded him additional PPD benefits based on that rating.

¶ 15 The City petitioned for review by the Panel only as to the first issue resolved by the ALJ — whether the Director had authority to effectively reopen the award. The City did not raise to the Panel, or to this court, any arguments concerning issues two or three. The Panel upheld the ALJ's order, stating that "[i]n [its] view, the closure effectuated by the Director's show cause order may be reopened either by proving the factors in [ section] 8-43-303 ... or when the Director simply invokes his discretion and revokes or amends his show cause order." Thus, finding reasonable the ALJ's conclusion that the Director acted within his discretionary authority, the Panel didn't consider whether the statutory criteria were satisfied.

¶ 16 The City now appeals.

II. Analysis

A. Review Standards

¶ 17 When we interpret a statutory provision, if its language is clear "we interpret [it] according to its plain and ordinary meaning." Davison v. Indus. Claim Appeals Off. , 84 P.3d 1023, 1029 (Colo. 2004). In addition, "when examining a statute's language, we give effect to every word and render none superfluous because we ‘do not presume that the legislature used language idly and with no intent that meaning should be given to its language.’ " Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist. , 109 P.3d 585, 597 (Colo. 2005) ).

¶ 18 We review matters of statutory construction de novo. Ray v. Indus. Claim Appeals Off. , 124 P.3d 891, 893 (Colo. App. 2005), aff'd , 145 P.3d 661 (Colo. 2006). Although we will defer to the Panel's reasonable interpretation of the statute it administers, we are not bound by it. SkyWest Airlines, Inc. v. Indus. Claim Appeals Off. , 2020 COA 131, ¶ 32, 487 P.3d 1267. "The Panel's interpretation will ... be set aside ‘if it is inconsistent with the clear language of the statute or with the legislative intent.’ " Baum v. Indus. Claim Appeals Off. , 2019 COA 94, ¶ 36, 487 P.3d 1079 (quoting Town of Castle Rock v. Indus. Claim Appeals Off. , 2013 COA 109, ¶ 11, 373 P.3d 609 ).

B. Statutory Provisions

¶ 19 This case exposes a tension in the Workers' Compensation Act (Act) between the Director's discretionary authority to manage claims and the legislature's statutory mandate governing the reopening of closed awards.

¶ 20 On the one hand, the Act grants the Director discretionary authority to manage claims. For instance, the Act empowers the Director "to appoint claims managers to review, audit, and close cases, ... to promote speedy and uncomplicated problem resolution of workers' compensation matters, and to otherwise manage claims ." § 8-43-218(1), C.R.S....