Posted by: Clay Thornton, Esq.
Date: June 26, 2013
In Crigger v. Denver Health, W.C. No. 4-770-747 (ICAO, May 6, 2013), the respondent filed a final admission of liability admitting for Permanent Partial Disability benefits based upon the Division IME’s findings. Within the statutory period for objecting, the claimant filed an application for hearing listing PPD as an issue. However, the claimant did not file a separate objection to the final admission. Regardless, the claimant failed to actually set the hearing on her timely application for hearing, forcing her to file a second application for hearing well outside of the statutory period for objecting to the final admission. Based upon these facts, the Administrative Law Judge ruled that the claim was closed. The ICAO, however, disagreed and reversed the ALJ.
Primarily, the Panel determined that no separate objection is required if the application for hearing is timely and adequately puts the respondent on notice that PPD remains in controversy and is not subject to automatic closure. This seems to be a fair conclusion.
More alarming, the Panel relied on previous decisions to hold that the claimant’s failure to timely set the hearing on her first application for hearing did not cause the claim to automatically close. The statute only specifically requires that a claimant file an application for hearing within thirty days. There is no explicit requirement that the claimant actually set the hearing within the prescribed timeframe.
I find this ruling difficult to reconcile with the procedural rule providing that merely filing an application or hearing without actually going forward with the hearing does not constitute “prosecution” for purposes of avoiding claim closure pursuant to a show cause order. While the procedural context is different, it seems more reasonable to also apply that rule in the context of claim closure pursuant to final admission. Regardless, this decision tells claimants, and their attorneys, that they can keep issues open by simply objecting even if they do not timely prosecute their objections. This outcome is similar to the situation in which a claimant can preserve her right to a DIME by simply applying for one even if she does not timely schedule it.