Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Justiniano v. Industrial Claim Appeals Office State

Court of Appeals of Colorado, Seventh Division

May 19, 2016

Felicia Justiniano, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Friends Trading Company, Inc., and Property & Casualty Insurance Company of Hartford, Respondents.

         Industrial Claim Appeals Office of the State of Colorado WC No. 4-919-554

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

No Appearance for Respondents Industrial Claim Appeals Office

          Law Offices of Scott Tessmer, Matthew C. Hailey, Greenwood Village, Colorado, for Respondents Friends Trading Company, Inc. and Property & Casualty Insurance Company of Hartford

          OPINION

          BERGER JUDGE

         ¶ 1 This is a workers' compensation case. After a division-sponsored independent medical examination (DIME) found that claimant Felicia Justiniano had reached maximum medical improvement (MMI), claimant moved to reopen the claim with medical information that postdated the DIME. The administrative law judge (ALJ) denied and dismissed the petition to reopen, concluding that claimant was trying to improperly use the reopening procedure to circumvent the statutorily heightened burden of proof required to overcome the DIME. The Industrial Claim Appeals Office (Panel) concluded that the record supported the ALJ's decision and affirmed. We affirm the Panel's order.

         I. Background

         ¶ 2 Claimant sustained an admitted injury to her wrist in May 2013. She underwent treatment and was placed at MMI by her authorized treating provider (ATP) in December 2013. The ATP concluded she was not a candidate for surgery.

         ¶ 3 Claimant requested a DIME to challenge the ATP's MMI finding. The DIME physician agreed with the ATP's MMI date and recommendation for conservative treatment. He rated claimant's impairment as fifteen percent of the whole person. He also noted that claimant's medical records were devoid of any surgical recommendations or operative reports. Employer, Friends Trading Company, Inc., and its insurer, Property & Casualty Insurance Company of Hartford, filed a final admission of liability (FAL) based on the DIME.

         ¶ 4 Although the FAL expressly advised claimant that she could object to the FAL within thirty days, she did not file an objection. Instead, she petitioned to reopen her claim less than two weeks after the FAL was filed and while the claim was still open. In her petition to reopen, claimant asserted that she had experienced a worsening or change in her condition. She claimed that her changed condition was established by the debridement and surgical repair of her wrist that she had undergone less than one month after the DIME.

         ¶ 5 The ALJ denied and dismissed claimant's petition to reopen. The ALJ found that claimant was "actually attempting to challenge the DIME regarding the MMI determination by suggesting that [she] required additional medical care, specifically the wrist surgery performed [in September 2013] in order to reach MMI." The ALJ explained that it would have been appropriate for claimant to challenge the DIME, but not to attempt to reopen a claim that had not yet been closed. For these reasons and others, the ALJ concluded that claimant's petition to reopen was in reality "an attempt to circumvent the higher standard of clear and convincing evidence required to challenge the DIME by filing a petition to reopen instead."

         ¶ 6 The Panel found no fault with the ALJ's application of the law or factual findings. Holding that substantial evidence supported the ALJ's determination that claimant's petition to reopen was an attempt to circumvent the higher standard of proof applied to DIME challenges, the Panel affirmed. Claimant now appeals.

         II. Claimant's Arguments

         ¶ 7 Claimant asserts the following arguments on appeal: the ALJ and the Panel misapplied Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005); the ALJ improperly disregarded her counsel's arguments and representations that she was not challenging the DIME physician's MMI finding; and substantial evidence did not support the ALJ's finding that her petition to reopen was an attempt to circumvent the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.