Opinion
W.C. No. 4-342-550
May 30, 2001
FINAL ORDER
The pro se claimant has filed a petition to review an order of Administrative Law Judge Martinez (ALJ) dated January 12, 2001. We affirm.
The deceased died on May 7, 1997. The claimant is the widow of the deceased. The claimant filed a claim for workers' compensation death benefits and alleged the decedent died from the effects of a lung disease caused by his employment in a uranium mine.
Based upon the evidence presented at a hearing on February 10, 2000, ALJ Corchado determined the deceased died from an acute myocardial infarction. ALJ Corchado also found the deceased had pulmonary fibrosis. However, ALJ Corchado determined the claimant failed to prove that the pulmonary condition caused the fatal heart attack. Therefore, in an order dated May 11, 2000 and mailed May 12, 2000, ALJ Corchado denied and dismissed the claim.
Apparently, the claimant filed a timely petition to review the May order. However, on August 1, 2000, the claimant moved to withdraw the petition to review. In an order dated January 12, 2001, ALJ Corchado granted the claimant's motion.
No further action was taken until November 21, 2000, when the claimant filed an Application for Hearing and indicated she had "new evidence" on the issue of death benefits. The Colorado Compensation Insurance Authority (CCIA) filed a motion to dismiss the application for hearing on the grounds of res judicata. The ALJ granted CCIA's motion to dismiss in an order dated January 12, 2001.
On January 23, 2001, the claimant filed a petition to review and requested that the claim not be dismissed. In support, the claimant contends her evidence was not properly presented. The claimant also contends she has new evidence which proves the decedent had lung cancer for 17 years, which was caused by his employment as an underground miner. The claimant further contends the pulmonary disease contributed to the claimant's death.
Section 8-43-301(2), C.R.S. 2000, provides that an ALJ's order denying benefits is final unless appealed within 20 days of the date of the certificate of mailing of the ALJ's order. See Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). The claimant is then precluded from receiving further benefits in the absence of an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
Here, the record compels the conclusion the claim was closed by virtue of the order allowing the claimant to withdraw her petition to review the May 2000 order. Furthermore, the claimant's subsequent Application for Hearing was not filed within 20 days of the date ALJ Corchado's May 2000 order was mailed to the parties. Consequently, the Application for Hearing is not a timely petition to review the May order. Therefore, the claimant is precluded from receiving death benefits in the absence of an order reopening the claim.
The existence of "new evidence" may support a petition to reopen on the grounds of "mistake." However, the claimant did not file a formal petition to reopen and we cannot say the ALJ was required to treat the Application for Hearing as a petition to reopen. See Rules of Procedure, Part X, 7 Code Colo. Reg. 1101-3 at 37; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986).
Rather, it appears the ALJ treated the Application as a request to present additional evidence on an issue that was fully litigated at the hearing on February 10, 2000 and resolved by the May 11, 2000 order of ALJ Corchado. Under these circumstances, the ALJ did not err in striking the Application for Hearing. See Ferris v. Bakery, Confectionery and Tobacco Union, 867 P.2d 38 (Colo.App. 1993) (res judicata bars relitigation of not only all issues actually decided, but all issues that could have been decided).
Moreover, our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Consequently, we have not considered the documents attached to the claimant's petition to review and brief in support of the petition to review.
IT IS THEREFORE ORDERED that the ALJ's order dated January 12, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 30, 2001 to the following parties:
Eva Wynelle Elliott, 1681 Aspen St., Grand Junction, CO 81503
Washburn Mining Company, Curt Kriksciun, Esq., CCIA d/b/a Pinnacol Assurance — Interagency Mail
Laurie A. Schoder, Esq., CCIA d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Barbara Carter, Subsequent Injury Fund, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
Joe Haughain, Esq., Assistant Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
Eliot J. Wiener, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy