Opinion
W.C. Nos. 4-109-668, 4-206-870
March 4, 1997
ORDER OF REMAND
The claimant seeks review of an order of the Deputy Director of the Division of Workers' Compensation (Deputy Director) dated October 3, 1996, which closed W.C. No. 4-109-668. We set aside the order and remand for further proceedings.
In an order dated November 7, 1994, these claims were consolidated for "all purposes, including that of hearing." On May 9, 1995, Administrative Law Judge Stuber entered a summary order which required the respondents to pay permanent partial disability benefits in W.C. No. 4-109-668, and denied a petition to reopen W.C. No. 4-206-870.
In January 1996, the respondents petitioned to close W.C. No. 4-109-668, on grounds that the claimant had failed to prosecute the claim since July 1995. On February 23, 1996, Barbara Kozelka, former Director of the Division of Workers' Compensation, issued an order which required the claimant to show cause in the following thirty days why the claim should not be closed for lack of prosecution. On October 3, 1996, the Deputy Director found that "no timely response" to the show cause order had been received, and therefore, closed the claim, subject to the reopening statute currently codified at § 8-43-303, C.R.S. (1996 Cum. Supp.).
The claimant timely filed a Petition for Review of the Deputy Director's October 3 order. In the Petition, claimant's counsel asserts that he filed a response to the show cause order on March 13, 1996, but that he erroneously put "W.C. No. 4-206-870 instead of "W.C. No. 4-109-668 on the caption. Further, the claimant attached a copy of a "Response to Show Cause Order" dated March 13, 1996, which states that the claimant "desires to keep his medical benefits open pursuant to" Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), and wants to "preserve his right to reopen his claim on all other issues, especially on the grounds of worsening of condition."
On October 30, 1996, the respondents moved to strike the claimant's appeal, on grounds that the Deputy Director's order is not a final order. The respondents also filed a second petition to close the claim, which alleged that the claimant failed to prosecute the claim since the "time of claimant's Response to Show Cause Order dated March 13, 1996."
On December 13, 1996, the Deputy Director denied the respondents' motion to dismiss the claimant's appeal. The matter was subsequently transmitted to us for review.
Initially, we reject the respondents' contention that the Deputy Director's order is interlocutory, and not currently subject to review. Under § 8-43-301(2), C.R.S. (1996 Cum. Supp.), we may review an order which "denies a claimant any benefit or penalty." The Deputy Director's order precludes the claimant from receiving further benefits in the absence of an order reopening the claim pursuant to § 8-43-303. See Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Consequently, the Deputy Director's order is a final order for purposes of § 8-43-301(2).
Concerning the substantive issue, we note that the record does not contain the original response alleged to have been filed by the claimant. However, the Deputy Director's December 13 order does not address the claimant's assertion that the response may not have reached the Deputy Director because it did not contain W.C. No. 4-109-668 on the caption. Nor does the order reference the respondents' concession that they received a copy of the claimant's response.
Although the copy of the claimant's response does not indicate that it was mailed or delivered to the Division, we do not believe that this necessarily contradicts the claimant's assertion that he timely filed a response. Therefore, the claimant's assertion may not be summarily denied. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). Further, the claimant's assertion that he timely "filed" the response, if believed, could establish that the claim was closed on an erroneous basis. However, because the claimant's assertion is factual in nature, we can neither accept nor reject it on appeal. See § 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Under these circumstances, it is necessary to remand the matter for further proceedings and a new order. On remand, the Deputy Director shall make a determination of whether the claimant filed a timely response to the order to show cause. If there is any factual dispute concerning this issue, the parties must be afforded a hearing so that they may present evidence concerning the matter. Moreover, if it is determined that the claimant filed a timely response, a determination must be made as to whether the response established "good cause" for not closing the claim.
IT IS THEREFORE ORDERED that the Deputy Director's order dated October 3, 1996, is set aside and the matter is remanded to the office of the Director for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
Copies of this decision were mailed March 4, 1997 to the following parties:
Cecil H. Walkinshaw, 4507 Everett St., Wheatridge, CO 80033-3139
P/SL Healthcare System, 720 S. Colorado Blvd., Ste. 1260S, Denver, CO 80222
TIG Insurance Co., Attn: Nancy Rostad, P.O. Box 17005, Denver, CO 80217
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency mail)
Gregory B. Cairns, Esq., 3500 E. Mexico Ave., #1300, Denver, CO 80222 (For Claimant)
Lydia W. Daugherty, Esq., 6400 S. Fiddlers' Green Cir., Ste. 1270, Englewood, CO 80111 (For R/SL Healthcare and TIG)
Anthony Hall, Esq., 999 18th St., #3100, Denver, CO 80202 (For P/SL Healthcare CCIA)
BY: _______________________________