Youngs v. Indus. Claim Appeals Office of Colo.
| Decision Date | 11 April 2013 |
| Docket Number | Court of Appeals No. 12CA0257 |
| Citation | 2013 COA 54 |
| Parties | Patrick Youngs, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado; White Moving and Storage, Inc.; and Pinnacol Assurance, Respondents. |
| Court | Colorado Court of Appeals |
Industrial Claim Appeals Office of the State of Colorado
ORDER AFFIRMED
Opinion by JUDGE HAWTHORNE
¶1 In this workers’ compensation action, claimant, Patrick Youngs, seeks review of a final order of the Industrial Claim Appeals Office (Panel) that (1) considered a June 27, 2011 order issued by administrative law judge (AUJ) Cain granting partial summary judgment to employer, White Moving and Storage, Inc., and dismissing claimant’s petition to reopen based on fraud; and (2) reviewed a July 18, 2011 order issued by AUJ Jones denying and dismissing claimant’s petition to reopen based on worsening condition. The Panel held that it lacked jurisdiction to review AUJ Cain’s order because it was an interlocutory order and claimant failed to file his petition to review that order within the applicable twenty-day statutory time period after AUJ Jones’s final order entered. It affirmed AUJ Jones’s order, rejecting claimant’s evidentiary and due process challenges. We affirm.
¶2 This is claimant’s third appeal arising from his 2005 workers’ compensation claim. See Youngs v. Indus. Claim Appeals Office, 2012 COA 85; Youngs v. Indus. Claim Appeals Office, (Colo. App. No. 08CA2209, Nov. 19, 2009) (not published pursuant to C.A.R. 35(f)).
¶3 Claimant sustained an admitted, work-related injury to his left shoulder in 2005. His authorized treating physician (ATP) placed him at maximum medical improvement (MMI) in 2006.
¶4 In March 2011, claimant filed a petition to reopen his claim based on worsening condition (pain in his right arm allegedly caused by its overuse after the injury to his left arm) and fraud (employer failed to disclose its insurer’s financial relationship with the medical group retained to perform the division-sponsored independent medical examination (DIME)).
¶5 Employer and its insurer, Pinnacol (collectively employer), sought an order dismissing the fraud claim. Employer argued that claimant could not establish the requisite fraud elements to support his request to reopen on that basis. AUJ Cain agreed and dismissed claimant’s fraud claim.
¶6 A hearing was later conducted by AUJ Jones on claimant’s worsening condition claim. After receiving testimony from claimant and employer’s retained independent medical examination (IME) physician, AUJ Jones found the IME physician credible and persuasive and discredited claimant’s testimony as “implausible, inconsistent, and unsupported by the medical records.” She concluded that claimant had not established that his right arm pain was causally connected with his left arm injury, and therefore denied and dismissed his petition to reopen based on worsening condition.
¶7 Claimant filed his petition to review AUJ Cain’s order on July 15, 2011. He filed his petition to review AUJ Jones’s order on July 18, 2011. The Panel affirmed AUJ Jones’s order, but determined that it lacked jurisdiction to review AUJ Cain’s order. This appeal followed.
¶8 Claimant contends that the Panel improperly determined that it lacked jurisdiction to review AUJ Cain’s order. He argues that his petition to review was filed timely and therefore the order should have been reviewed and ultimately set aside. We disagree.
¶9 Claimant filed his petition to review AUJ Cain’s order before AUJ Jones issued her final order. After AUJ Jones issued her final order, claimant filed a second petition to review that order. Claimant did not mention AUJ Cain’s earlier order in the second petition.
¶10 The Panel dismissed claimant’s appeal of ALJ Cain’s order, holding that the order was interlocutory and claimant had failed to file his petition to review it within the applicable twenty-day statutory time period after it became final. The following chronology illustrates the basis of the Panel’s holding.
+-----------------------------------------------------------------------------+
¦DATE ¦ACTION ¦
+---------------------+-------------------------------------------------------¦
¦June 24, 2011 ¦ALJ Cain issues order granting partial summary judgment¦
¦ ¦to employer dismissing claimant’s petition to review ¦
¦ ¦based on fraud, but allowing remaining claim to proceed¦
¦ ¦to hearing (interlocutory order) ¦
+---------------------+-------------------------------------------------------¦
¦June 27, 2011 ¦ALJ Cain’s order is mailed to the parties ¦
+---------------------+-------------------------------------------------------¦
¦June 29, 2011 ¦Hearing is held before ALJ Jones ¦
+---------------------+-------------------------------------------------------¦
¦July 15, 2011 ¦Claimant submits his petition to review ALJ Cain’s ¦
¦ ¦order ¦
+---------------------+-------------------------------------------------------¦
¦July 15, 2011 ¦ALJ Jones issues order denying and dismissing ¦
¦ ¦claimant’s petition to review based on worsening ¦
¦ ¦condition (final order) ¦
+---------------------+-------------------------------------------------------¦
¦July 18, 2011 ¦ALJ Jones’s order is mailed to the parties ¦
+---------------------+-------------------------------------------------------¦
¦July 18, 2011 ¦Claimant submits petition to review only ALJ Jones’s ¦
¦ ¦order ¦
+-----------------------------------------------------------------------------+
¶11 Pursuant to section 8-43-301(2), C.R.S. 2012, a petition to review an order of an ALJ “shall be filed within twenty days after the date of the certificate of mailing of the order.” (Emphasis added.) But review by the Panel and this court is limited to orders that require “any party to pay a penalty or benefits or den[y] a claimant any benefit or penalty.” Id. “The term ‘final order’ has ‘traditionally been interpreted as including only those orders that grant or deny benefits or penalties.’” Jefferson Cnty. Pub. Sch. v. Indus. Claim Appeals Office, 181 P.3d 1199, 1200 (Colo. App. 2008) (quoting Ortiz v. Indus. Claim Appeals Office, 81 P.3d 1110, 1111 (Colo. App. 2003)).
¶12 “Where an order neither awards nor denies benefits, it is merely interlocutory and is ‘not ripe for appellate review.’” Flint Energy Servs., Inc. v. Indus. Claim Appeals Office, 194 P.3d 448, 450 (Colo. App. 2008) (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868 P.2d 1158, 1163 (Colo. App. 1994)). However, “an interlocutory order becomes reviewable when appealed incident to or in conjunction with an otherwise final order.” BCW Enters., Ltd. v. Indus. Claim Appeals Office, 964 P.2d 533, 537 (Colo. App. 1997).
¶13 A party that misses the twenty-day statutory time limit for filing a petition for review is jurisdictionally barred from obtaining further review of the order. See Wal-Mart Stores, Inc. v. Indus. Claim Appeals Office, 24 P.3d 1, 2 (Colo. App. 2000) (); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193, 1194 (Colo. App. 1991) (). “[A]bsent the filing of a timely petition to review, the Panel lacks jurisdiction to review the AUJ’s order.” Brodeur v. Indus. Claim Appeals Office, 159 P.3d 810, 812 (Colo. App. 2007). Moreover, “[b]ecause filing requirements are jurisdictional, such statutory provisions must be strictly construed.” Schneider Nat’l Carriers, Inc. v. Indus. Claim Appeals Office, 969 P.2d 817, 818 (Colo. App. 1998).
¶14 Claimant first contends that the Panel erred in holding that it did not have jurisdiction to review AUJ Cain’s order. He argues that (1) because AUJ Cain’s order was an interlocutory order, it was not final for purposes of appeal and therefore a petition to review it was not required, and (2) his timely appeal of AUJ Jones’s final order included AUJ Cain’s order. To the extent claimant argues that he was entitled to automatic review of AUJ Cain’s order when he filed a timely petition for review of AUJ Jones’s order, we disagree.
¶15 We know of no authority, and claimant cites none, that relieves a party from filing a timely written petition to review that identifies the alleged errors in the order or orders of which the party seeks review. To the contrary, a party petitioning for review of an AUJ’s order must make the request in writing and “shall set forth in detail the particular errors and objections of the petitioner.” § 8-43- 301(2); see also Martinez v. Indus. Comm’n, 709 P.2d 49, 50 (Colo. App. 1985) ().
¶16 Here, claimant’s timely petition to review AUJ Jones’s final order neither listed AUJ Cain’s order nor identified errors in that order that the Panel should review. The petition was therefore inadequate to...
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