Opinion
W.C. No. 4-331-830.
August 31, 2005.
FINAL ORDER
The claimant seeks review of an order of summary judgment by Administrative Law Judge Klein (ALJ) which dismissed her petition to reopen. We affirm.
The ALJ found the claimant's September 2004 petition to reopen was filed more than 6 years after the 1996 admitted injury. The ALJ also found the petition was filed more than 2 years after April 22, 2002, when benefits were last paid pursuant to the respondents' Final Admission of Liability (FAL). Therefore, the ALJ determined the petition to reopen was barred by the statute of limitations in § 8-43-303, C.R.S. 2004.
The claimant's petition to review alleged the ALJ's findings of fact are not supported by the evidence, the ALJ did not sufficiently resolve conflicts in the evidence and the order is not supported by the applicable law. However, the claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-43-303(1), C.R.S. 2004, provides that an ALJ may reopen a claim "at any time within six years of the date of injury," on the grounds of a change in condition. Subsection 8-43-303(2) allows an ALJ to reopen a claim within two years of the date the last temporary or permanent disability benefit has become due or payable. In University of Denver v. Industrial Commission, 138 Colo. 505, 335 P.2d 292 (1959), the court concluded that when a claimant is awarded permanent partial disability benefits to be paid in monthly installments the statutory time for reopening under § 8-43-303(2) runs from the date when the periodic payments would have terminated if paid in monthly installments even if the claimant receives the benefits in a lump sum award.
Under C.R.C.P. 56 an ALJ may enter summary judgment where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). Accordingly, where the pertinent facts are undisputed, an ALJ may dispose of an issue without conducting a hearing. See Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).
Here, the record supports the ALJ's implicit determination that there was no disputed issue of material fact. Thus, we reject the claimant's contention there were any pertinent conflicts for the ALJ to resolve.
In addition, any factual error by the ALJ was harmless and does not establish grounds to grant appellate relief. See § 8-43-310 C.R.S. 2004; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). It is undisputed the admitted injury occurred on December 12, 1996, not June 16, 1996, as found by the ALJ. However, there is no dispute the claimant's petition to reopen was filed more than 7 years after the injury date. Therefore, the ALJ correctly found the claim was barred from opening under the 6 year statute of limitations in § 8-43-303(1).
We also note that although the claimant concedes she received a lump sum award of permanent partial disability benefits, the respondents' April 22, 2002 FAL stated that periodic permanent partial disability benefits would be paid through July 12, 2002. Under these circumstances, the ALJ's finding that "the last date benefits were paid" on April 22, 2002, is contrary to the record and the applicable law. University of Denver v. Industrial Commission, supra. Nevertheless, the claimant's September 2004 petition to reopen was filed more than 2 years after July 12, 2002. Consequently, the ALJ's error is harmless and we must uphold the ALJ's determination that the claim is barred from reopening under the 2 year statute of limitations in § 8-43-303(2).
IT IS THEREFORE ORDERED that the ALJ's order dated May 9, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain ____________________ Kathy E. Dean Andrea Green, Hendersonville, NC, Colorado West Healthcare System, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail Luke A. Brennan, Esq., Grand Junction, CO, (For Claimant).Michelle L. Prince, Esq. and Douglas P. Ruegsegger, Esq., Denver, CO., (For Respondents).