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Published: 2008-03-26

Re-Opening a Worker's Compensation Claim



Article provided by the Eley Law Firm. Please visit our Web site at www.eleylawfirm.com.

Even though a worker's compensation claim may be closed, there can be circumstances that require re-opening the claim. For example, a worker's health could worsen over time, necessitating additional medical benefits. Conversely, a worker may have been paid too much compensation, and the insurer may seek to recover the amount overpaid.

Either the insurer or the injured worker has the right to request the re-opening of a claim. A claim may be re-opened to request additional compensation and/or additional medical benefits. Under Colorado law, the reasons a worker's compensation claim may be re-opened include:

  • Mistake or error
  • Change in conditions
  • Overpayment of benefits
  • Fraud
  • Mutual mistake of a material fact

 

Worsening Conditions         

A change in conditions is the most common reason a worker would petition to re-open a worker's compensation claim. Most people mistakenly believe that so long as they have a physician's report that their condition has worsened, their claim must be re-opened. Unfortunately, this is not true. A physician's report alone may not be enough to ensure an injured worker receives additional compensation.

The injured worker has the burden to prove to the administrative judge that:

  • The worsening condition is caused by the original compensable injury
  • The worsening condition entitles the worker to additional benefits

 

To be compensable, the worsening condition must be a physical or mental change in circumstances — purely economic conditions are not compensable. Further, the condition may not have been caused by a non-work related injury or other intervening cause.

Administrative law judges have the authority to determine whether or not to re-open a worker's compensation claim. They are not required by law to re-open any case unless there is compelling evidence to do so. Whether a physician's report provides compelling evidence is up to the administrative law judge to determine.

While securing a report from the authorized treating physician documenting the worsening conditions is strong evidence of the need for increased benefits, the ultimate decision to do so lies with the administrative law judge. If the authorized treating physician will not provide the report, alternative physicians may be used, but it is in the worker's best interest to seek a doctor he or she has seen routinely and who understands the worker's medical condition. The doctor also should have access to the worker's complete medical history and reports to base his or her medical opinion on.

In some instances, the worker's own testimony about his or her worsening conditions may persuade the administrative law judge that he or she qualifies for additional benefits. However, a well written, thorough medical report documenting the worsening conditions is still invaluable evidence in a petition to re-open a worker's compensation claim.

Statute of Limitations

There are time limits on filing a petition to re-open a worker's compensation claim.

  • To re-open a claim for compensation, the petition must be filed within six years from the time of injury or within two years from the last payment of compensation
  • To re-open a claim for medical benefits, the petition must be filed within six years from the time of injury or within two years from the last payment of medical benefits

 

If a petition for medical benefits is not filed within this period, the worker is forever barred from filing the petition and the worker's case as to medical benefits is permanently closed.

In certain circumstances the statute of limitations may be tolled, giving the worker additional time to file the petition. For example, if the worker is declared incompetent, the limitations period may be tolled. Also, if the insurer fails to disclose information it is legally obligated to disclose to the worker, the statute may be tolled.

The Effect of a "Full and Final" Settlement

In some cases, the worker's compensation claim is closed by a "full and final settlement." This means that both parties — the injured worker and the insurance company — are precluded from re-opening the case.

However, there are two instances when a full and final settlement may be re-opened: if there was fraud, or if there was mutual mistake of a material fact. If either party can provide compelling evidence of one of these two grounds, an administrative law judge may re-open the case.