23CA2245 Atencio v ICAO 08-01-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2245

Industrial Claim Appeals Office of the State of Colorado

WC No. 5-154-394

Kevin Atencio,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado, Rio Grande County,

and County Workers’ Compensation Pool,

Respondents.

ORDER AFFIRMED

Division III

Opinion by JUDGE BERNARD*

Dunn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 1, 2024

Michael W. Seckar, P.C., Lawrence D. Saunders, Pueblo, Colorado, for

Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Dworkin, Chambers, Williams, York, Benson & Evans, P.C., Gregory K.

Chambers, Denver, Colorado, for Respondents Rio Grande County and County

Workers’ Compensation Pool

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 This is a workers’ compensation case. A claimant, Kevin

Atencio, asks us to review a final order of a panel of the Industrial

Claim Appeals Office affirming a determination by an administrative

law judge. The judge had decided that, in order to recoup an

overpayment, the respondents — Rio Grande County and its

insurer, County Workers’ Compensation Pool — did not need to

reopen the claim after filing a final admission of liability. We affirm.

I. Background

¶ 2 The claimant suffered an admitted work-related injury to his

right shoulder in February 2020. He was placed at maximum

medical improvement in January 2022 with a 17% upper extremity

impairment rating. Respondents filed their final admission of

liability, which we shall shorten to “admission,” in January 2022.

In it, they admitted that they were liable to the claimant for

$11,347.02 in partial permanent disability benefits, which we shall

shorten to “disability benefits.” They also claimed that claimant

had been overpaid $486.21 in other payments, which was to be

collected from the disability benefits. The respondents did not

claim any other overpayment, and they paid the full disability

benefit to the claimant.

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¶ 3 The claimant objected to the admission, requesting a hearing

to convert the partial impairment rating to a whole person rating.

The respondents then endorsed the issue of apportionment, which

was based on a right shoulder injury rating the claimant had

received in a prior claim that arose from a separate March 2006

work-related injury.

¶ 4 In August 2022, after a hearing on the claimant’s conversion

claim and the respondents’ apportionment request, the judge

denied the claimant’s request for a whole person impairment rating

and decided that the respondents were entitled to an apportionment

of the current rating. Rejecting the claimant’s argument that the

admission closed any issue regarding apportionment, the judge

found that the claimant’s conversion request implicated the entire

disability award and, therefore, the admission was not closed with

respect to the respondents’ apportionment request. In apportioning

the disability benefits, the judge found that the claimant was not

entitled to benefits for his most recent claim because the prior

injury’s rating exceeded the new injury’s rating.

¶ 5 In December 2022, the respondents filed an application for a

hearing, and they endorsed recoupment of an overpayment as the

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issue to be determined at the hearing. They did not file a petition to

reopen the claim, and they did not check the box for reopening the

claim on the hearing application.

¶ 6 At the May 2023 hearing on the respondents’ application, the

claimant argued that the judge did not have jurisdiction to

determine the overpayment issue because (1) the issue had been

closed by the January 2022 admission; and (2) the respondents

never endorsed reopening as an issue to be considered. The judge

rejected the claimant’s jurisdiction argument, deciding that “it [was]

by no means certain that the issue of overpayment was closed by

the [admission], which was issued before the August 2022 decision

that found [the] respondents are entitled to apportionment.” Noting

that panels of the Industrial Claim Appeals Office had previously

issued opinions in other cases stating that “an overpayment . . .

created by [a judge’s] order was not ripe for determination before

that order was issued,” the judge concluded that the overpayment

issue was not closed because it had not existed until the August

2022 order.

¶ 7 The judge further determined that, even assuming the

overpayment issue was closed, nothing in section 8-43-303, C.R.S.

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2023, mandated the filing of a formal petition to reopen a claim to

confer jurisdiction on him to determine whether there was an

overpayment. As a result, the judge concluded that neither the

filing of a petition to reopen nor endorsing it in an application for a

hearing were jurisdictional prerequisites to reopening the claim.

¶ 8 On review, the panel affirmed the judge’s decision and rejected

the claimant’s argument that the judge lacked jurisdiction to

address the overpayment issue. Specifically, the panel concluded

that the overpayment issue (1) was not closed by the respondents’

admission because the claimant had contested it; and (2) the

judge’s August 2022 order created the overpayment, not the

respondents’ admission. The panel therefore agreed with the judge

that the respondents were not required to petition for reopening or

otherwise required to endorse reopening before the judge could

address recoupment of the overpayment.

II. Standard of Review and Applicable Law

¶ 9 We defer to the judge’s findings of fact when they are

supported by substantial evidence in the record, but we review the

agency’s conclusions of law de novo. See Pinnacol Assurance v.

Hoff, 2016 CO 53, ¶ 24. As is relevant to this case, we may set

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aside the panel’s decision if (1) the findings of fact are not

supported by the evidence; (2) the findings of fact do not support

the order; or (3) the award or denial of benefits is not supported by

applicable law. § 8-43-308, C.R.S. 2023.

¶ 10 Subject matter jurisdiction involves a court’s power to resolve

a dispute in which it renders judgment, Leewaye v. Indus. Claim

Appeals Off., 178 P.3d 1254, 1257 (Colo. App. 2007), and a court

maintains that subject matter jurisdiction if the case is one of the

types of cases that the court has been empowered to decide,

Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002). A court’s

authority to act within a class of cases in which it has subject

matter jurisdiction may be constrained by statute, rule, or case law.

People In Interest of T.W., 2022 COA 88M, ¶ 34.

¶ 11 Administrative law judges are required to hold hearings to

determine any controversy concerning workers’ compensation

issues, and they are empowered to issue orders, dismiss issues in a

case, and require repayment of overpayments. § 8-43-207(1)(k), (n),

(q), C.R.S. 2023.

¶ 12 A workers’ compensation case automatically closes as to

issues admitted in the admission if the claimant does not, within

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thirty days after the date of the admission, contest it in writing and

ask for a hearing on any disputed issues that are ripe for a hearing.

§ 8-43-203(2)(b)(II)(A), C.R.S. 2023; Leewaye, 178 P.3d at 1256; see

also Dyrkopp v. Indus. Claim Appeals Off., 30 P.3d 821, 822 (Colo.

App. 2001)(an uncontested admission automatically closes a case

as to issues admitted in the admission). Once a case has been

closed by the filing of an uncontested admission, the issues raised

in it cannot be litigated further unless the claim is reopened under

section 8-43-303. See Berg v. Indus. Claim Appeals Off., 128 P.3d

270, 272 (Colo. App. 2005). In cases involving an overpayment, as

described in section 8-42-113.5, C.R.S. 2023, the judge shall order

recovery of overpayments in accordance with that section.

§ 8-43-303(1).

¶ 13 When the claim in this case arose, section 8-40-201(15.5),

C.R.S. 2020, defined an overpayment as “money received by a

claimant that exceeds the amount that should have been paid.”

The statute addressing overpayments provides that a party may

recover an overpayment after an admission has been filed, provided

that any such request for a recovery is “asserted within one year

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after the time the requester knew of the existence of the

overpayment.” § 8-42-113.5(1)(b.5)(I).

III. Discussion

¶ 14 The claimant contends that the panel erred when it decided

that the overpayment arose out of the judge’s order instead of out of

the filing of the admission. Specifically, he asserts that the

admission closed the case as to the overpayment issue because the

overpayment originated from the admission in which the

respondents admitted to owing the claimant more disability benefits

than he was entitled to when factoring in the prior injury. So, the

claimant finishes up, because the respondents did not seek to

reopen the case, the judge lacked jurisdiction to consider their

recoupment claim. We are not persuaded.

¶ 15 The claimant’s contention concerning the judge’s jurisdiction

to order repayment of the overpayment rests on the assumption

that the respondents’ January 2022 admission closed the case,

meaning that the respondents had to petition for reopening to give

the judge jurisdiction to order repayment of the overpayment. But

automatic closure only occurs for uncontested issues in the

admission. See Dyrkopp, 30 P.3d at 822.

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¶ 16 In this case, the claimant contested the admission and sought

to have the disability rating converted to a permanent total

disability rating. In response to that request, the respondents

asked the judge to apportion the disability rating based on the

claimant’s prior injury to the same body part. In his August 2022

order, the judge decided that the claimant’s claim concerning

conversion to a whole person rating implicated the entire disability

award, not just the impairment rating for the current injury. The

judge therefore concluded that the case had not been closed by the

admission.

¶ 17 The record before us supports the judge’s decision. Because

the claimant contested the admission’s assessment of disability

benefits, the claim regarding those benefits was not closed. See id.

Consequently, we conclude that the panel did not err when it

affirmed the judge’s decision that the reopening provisions of

section 8-43-303 did not apply to respondents’ request to recoup

the overpayment because the admission did not close the claim for

disability benefits.

¶ 18 Contrary to the claimant’s assertion, the overpayment was not

created by the admission. Rather, as the judge and the panel

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decided, the overpayment did not exist until the judge determined

that the claimant’s current disability rating was affected by the

prior injury. In other words, the judge’s determination that the

claimant was not entitled to any disability benefits for this claim is

what created the overpayment. As the judge decided, the

overpayment issue was not ripe for determination before the August

2022 order was issued, and the respondents did not have to file a

petition to reopen or endorse reopening to have the judge consider

that issue. See Jiron v. Douglas Cnty. Sch. Dist. RE 1, W.C. No.

4-636-107, 2009 WL 3759670, at *3 (Colo. I.C.A.O. Nov. 4,

2009)(issue was not ripe before the judge’s order established

respondent’s liability for permanent disability benefits).

¶ 19 In reaching this conclusion, we reject the claimant’s

contention that, because the respondents knew about his prior

injury when they filed the admission, they correspondingly knew

that the disability amount to which they had admitted constituted

an overpayment. Regardless of whether the respondents knew or

should have known about the claimant’s prior injury, (1) because

the claimant’s challenge to the admission implicated the entire

disability award; (2) any overpayment issue could not have been

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known at the time the admission was filed; since (3) the amount of

the disability payment was disputed until the judge decided the

apportionment of the injury.

¶ 20 Finally, even if we accept, for purposes of argument, that the

claimant’s assertion that the claim for the overpayment was closed

upon the filing of the admission, we still conclude that the filing of a

petition to reopen was not a jurisdictional prerequisite for the judge

to determine the amount of overpayment and order repayment of it.

¶ 21 Section 8-42-113.5(1)(b.5)(I) expressly addresses recovery of

an overpayment. It provides that, except in cases of fraud, any

attempt to recover an overpayment after an admission has been

filed shall be asserted within one year after the time the requestor

knew of the existence of the overpayment. As the panel decided,

the respondents sought to recoup the overpayment just months

after the judge determined that the claimant was not entitled to any

disability benefits from the injury in this case. And, as we have

discussed above, it was the judge’s August 2022 decision regarding

apportionment that created the overpayment.

¶ 22 Section 8-42-113.5(1)(b.5)(I) does not state that the party

seeking the overpayment is required to file a petition to reopen to

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recoup it. Rather, to recoup an overpayment, the statute only

requires that the party file an application for hearing within one

year of knowing about the existence of the overpayment.

§ 8-42-113.5(1)(b.5)(I).

¶ 23 We therefore agree with the panel that the respondents were

not required to reopen the claim to recoup the overpayment of

disability benefits. By filing an application for hearing to recoup the

overpayment within one year of the order that created the

overpayment, the judge had jurisdiction to hear the overpayment

issue and to order the claimant to repay any overpayment. See

§ 8-43-207(1)(q) (authorizing judges to order repayment of

overpayments); see also Horton, 43 P.3d at 615.

¶ 24 The panel’s order is affirmed.

JUDGE DUNN and JUDGE MOULTRIE concur.