Cordova v. INDUST. CLAIM APPEALS OFFICE, No. 01CA0852.

Docket NºNo. 01CA0852.
Citation55 P.3d 186
Case DateFebruary 28, 2002
CourtCourt of Appeals of Colorado

55 P.3d 186

Ronnie L. CORDOVA, Petitioner,
v.
INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE of Colorado; Foundation Builders, Inc.; and American Compensation Insurance Co., Respondents

No. 01CA0852.

Colorado Court of Appeals, Div. IV.

February 28, 2002.


55 P.3d 188
Irwin & Boesen, P.C., Chris L. Ingold, Denver, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office.

Nathan, Bremer, Dumm & Myers, P.C., Bernard Woessner, Benjamin E. Tracy, Denver, Colorado, for Respondents Foundation Builders, Inc., and American Compensation Insurance Co.

Opinion by Judge TAUBMAN.

In this workers' compensation proceeding, Ronnie L. Cordova (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) denying his petition to reopen. We affirm.

Claimant sustained a compensable back injury on April 9, 1996. His treating physician placed him at maximum medical improvement (MMI) on October 17, 1997, with a sixteen percent whole person medical impairment rating. Foundation Builders, Inc., and its insurer, American Compensation Insurance Co. (collectively employer), filed a final admission in accordance with the rating. Claimant did not contest the admission, and the matter was closed.

In 1999, claimant petitioned to reopen, alleging that his condition had worsened, necessitating a spinal fusion at L5-S1. He also asserted that he had developed deep venous thrombosis (DVT) (blood clotting) as a consequence of his physical inactivity, which stemmed from the industrial injury. In support, claimant obtained and submitted a division-sponsored independent medical examination (DIME). The DIME physician opined that claimant was not at MMI and had continued to suffer pain, including an incident of severe, intractable pain, and that the DVT was related to his forced physical inactivity.

Following an evidentiary hearing, the Administrative Law Judge (ALJ) found that claimant failed to prove that his condition had worsened due to the industrial injury. Specifically, the ALJ relied upon other medical evidence to determine that claimant's condition had remained stable after reaching MMI, that surgical intervention was not presently indicated as either reasonable or necessary, and that the DVT was merely "superimposed" upon the work-related condition.

55 P.3d 189
Therefore, the ALJ denied the petition to reopen

On review, the Panel upheld the ALJ's denial. It found that there was substantial evidence to support the determination that claimant's condition had remained stable and that no causal relationship was shown to exist between the DVT and the industrial injury. In so holding, the Panel rejected claimant's assertion that the ALJ erred in failing to give presumptive effect to the DIME.

I. Jurisdiction

Initially, we reject employer's assertion that this court lacks jurisdiction to hear claimant's appeal because the opening brief was filed beyond the fifteen-day period provided in C.A.R. 3.1(b).

The record discloses not only that claimant filed his petition to review within the required time, thus vesting this court with jurisdiction, see § 8-43-301(10), C.R.S.2001; C.A.R. 3.1(a), but also that he requested and was granted an extension until August 20, 2001 to file the opening brief. Although claimant did not file his opening brief until the following day, he subsequently filed a motion for acceptance of the opening brief, and that motion was granted.

Although employer urges that the time limitations set forth in C.A.R. 3.1(b) for the filing of briefs are jurisdictional, there is nothing within that rule or the Workers' Compensation Act which indicates that this court's jurisdiction will be automatically lost upon a failure, justified or otherwise, to comply strictly with those requirements. See Ortiz v. Indus. Comm'n, 734 P.2d 642 (Colo.App.1986)(untimely filing of a brief is not a jurisdictional defect under the Act). Moreover, C.A.R. 26(b) vests this court with general authority to grant an enlargement of time for any act required under the appellate rules and only limits that power when a requested extension is sought for a notice of appeal under C.A.R. 4(a) or a petition for review of an administrative matter.

Dismissal of an appeal for failure to comply with statutory time limitations for filing briefs is discretionary with this court. See C.A.R. 26(b), 31; Wilkinson v. Motor Vehicle Div., 634 P.2d 1016 (Colo.App.1981). A decision of a motions division is not always binding, see Hillen v. Colorado Compensation Ins. Auth., 883 P.2d 586 (Colo.App.1994), and we see no reason to set aside the decision to accept claimant's opening brief.

II. Presumptive Effect of DIME

Claimant first contends that he was entitled to seek a DIME in support of his petition to reopen and that the ALJ erred in failing to give it presumptive effect. Because claimant actually underwent a DIME and was permitted to introduce the opinion of the DIME physician into evidence, we need not consider the question of his entitlement to the DIME. However, we disagree that the ALJ was required to give the DIME presumptive effect.

Section 8-43-303, C.R.S.2001, authorizes the director of the division of workers' compensation to reopen "any award" on the grounds of...

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40 practice notes
  • DIA Brewing Co. v. MCE-DIA, LLC, Court of Appeals No. 18CA2136
    • United States
    • Colorado Court of Appeals of Colorado
    • 6 Febrero 2020
    ...following the entry. And "[a] decision of a 480 P.3d 711 motions division is not always binding." Cordova v. Indus. Claim Appeals Office , 55 P.3d 186, 189 (Colo. App. 2002) ; see Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217, 1222 (deciding that the court is not bound by a motions di......
  • Leprino Foods v. Ind. Claim Appeals Office, No. 04CA1379.
    • United States
    • Colorado Court of Appeals of Colorado
    • 1 Diciembre 2005
    ...concerning causation Page 483 are binding unless overcome by clear and convincing evidence. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo.App. In contrast, the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that......
  • Deitz v. The Univ. Of Denver, Civil Action No. 95-cv-02756-WDM-OES
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 16 Febrero 2011
    ...client..." Id. However, the mere filing of the notice does not foreclose or enforce the lien without more. In re Marriage of Mitchell, 55 P.3d at 186. To enforce the lien, the claimant must bring a "proper civil action." Colo. Rev. Stat. § 12-5-119. A "proper civil action" includes an indep......
  • Martinez v. Mintz Law Firm, LLC, Supreme Court Case No. 14SC1
    • United States
    • Colorado Supreme Court of Colorado
    • 31 Mayo 2016
    ...property without recourse or forever subject to an action to enforce the lien. As the court of appeals has held, see Mitchell , 55 P.3d at 186, precisely because the statute cannot be reasonably interpreted to intend that filing notice of the attorney's claim alone serves to initiate enforc......
  • Request a trial to view additional results
40 cases
  • DIA Brewing Co. v. MCE-DIA, LLC, Court of Appeals No. 18CA2136
    • United States
    • Colorado Court of Appeals of Colorado
    • 6 Febrero 2020
    ...following the entry. And "[a] decision of a 480 P.3d 711 motions division is not always binding." Cordova v. Indus. Claim Appeals Office , 55 P.3d 186, 189 (Colo. App. 2002) ; see Allison v. Engel , 2017 COA 43, ¶ 22, 395 P.3d 1217, 1222 (deciding that the court is not bound by a motions di......
  • Leprino Foods v. Ind. Claim Appeals Office, No. 04CA1379.
    • United States
    • Colorado Court of Appeals of Colorado
    • 1 Diciembre 2005
    ...concerning causation Page 483 are binding unless overcome by clear and convincing evidence. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo.App. In contrast, the threshold question of whether the claimant has sustained a compensable injury in the first instance is one of fact that......
  • Deitz v. The Univ. Of Denver, Civil Action No. 95-cv-02756-WDM-OES
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 16 Febrero 2011
    ...client..." Id. However, the mere filing of the notice does not foreclose or enforce the lien without more. In re Marriage of Mitchell, 55 P.3d at 186. To enforce the lien, the claimant must bring a "proper civil action." Colo. Rev. Stat. § 12-5-119. A "proper civil action" includes an indep......
  • Martinez v. Mintz Law Firm, LLC, Supreme Court Case No. 14SC1
    • United States
    • Colorado Supreme Court of Colorado
    • 31 Mayo 2016
    ...property without recourse or forever subject to an action to enforce the lien. As the court of appeals has held, see Mitchell , 55 P.3d at 186, precisely because the statute cannot be reasonably interpreted to intend that filing notice of the attorney's claim alone serves to initiate enforc......
  • Request a trial to view additional results

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