Reopening a Denied Claim?

A claim never determined to be compensable cannot be reopened based on a change in condition.

In Amin, the Colorado Court of Appeals held that a claim cannot be reopened based on a change in condition when the claim was never determined to be compensable in the first place.

Here, the respondents filed a Notice of Contest in response to claimant’s alleged claim. After the requisite six months expired with no activity, respondents filed a motion to close. The Division issued a show cause order and the claim closed when claimant failed to respond.

Two years later the claimant applied for hearing and filed a petition to reopen. Respondents filed a motion for summary judgment based on the fact that the claimant could not reopen a claim that was never admitted or found compensable in the first instance. Essentially, a claimant cannot show a worsening when there was no base condition against which to compare whether the condition had changed. The ALJ, and likewise the Industrial Claim Appeals Office (“Panel”), agreed and granted the motion for summary judgment.

The Court of Appeals affirmed the Panel’s decision. The court explained that the ALJ must determine whether the change in claimant’s condition is connected to the original compensable injury. In order for an ALJ to assess whether a claimant’s condition has changed, one must start with a compensable condition. As that was lacking in this case, the Panel properly upheld the ALJ’s dismissal of claimant’s petition to reopen.

Amin v. Indus. Claim Appeals Office, 2017 CA2165 (Colo. App. Oct. 25, 2018)

Claims Representation Tip:

If a file has been denied and over six months has passed since the last activity, the proactive step of filing a motion to close is likely appropriate. If the motion is granted, this can have the effect of essentially closing the file permanently.

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 877-259-5693.

From the November 2018 Pollart Miller Newsletter

2019-01-21T15:22:40-07:00