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Can an injured worker waive his right to challenge and appeal an otherwise invalid (“FAL”)?

July 2, 2019 by Sean Knight

When an injured workers has sustained an admitted workers’ compensation claim, the insurance carrier typically starts the process of closing the admitted claim by filing a FAL.  If the injured worker does not object to the FAL within 30 days, the claim is administratively closed and arguably must be reopened prior to the injured worker being eligible for additional workers’ compensation benefits.   This can require the injured worker to prove at a hearing that his work-related injury has worsened prior to the receipt of additional workers’ compensation benefits.

To close a claim, the FAL must be valid.  There are a number of requirements for a valid FAL.  One of these requirements includes the FAL must be sent to the injured worker at his/her last known address on file with the Division of Workers’ Compensation (and his/her attorney, if represented). Another is if the FAL is based on medical opinions, the medical documentation supporting the medical opinions must be attached to the FAL.

In a recent appellate decision (ICAO), the injured worker did not object to the FAL within 30 days so the claim was arguably closed.  However, the injured worker filed a motion to strike the FAL due to the failure of the insurance company to attach supporting medical documentation to the FAL.  The Administrative Law Judge (“ALJ”) originally denied the motion and the injured worker appealed. The insurance company contended the claimant had waived any right he had to complain of defects in the FAL. The insurance company also contended the issue of whether a proper medical report was attached to the FAL and whether the respondents substantially complied with the law when filing the FAL was a question of fact not subject to resolution without a hearing.

ICAO determined in the first instance that the order was subject to appellate review.  Next, ICAO found that Claimant had NOT waived his right to challenge the validity or adequacy of the FAL by not objecting to the FAL within 30 days.  ICAO found that due to its jurisdictional nature, an objection to an invalid FAL could be raised at any point during the proceedings. Citing to the Colorado Court of Appeals decision in Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo. App. 1994), “[t]he procedural requirements for review in the Workers’ Compensation Act constitute limitations on administrative jurisdiction, and these jurisdictional limitations cannot be waived or eliminated by consent and cannot be avoided by estoppel.” 885 P.2d at 319. 

While the ICAO ultimately remanded the matter back to the ALJ to clarify the basis for the denial of the motion to strike the FAL, the likely outcome is that the FAL was an invalid admission which prevented the claim from being closed with the presence of a valid FAL deemed a jurisdictional prerequisite to a claim’s closure. This would have the impact of not requiring the injured worker to prove a worsening of his/her medical condition prior to reopening.  As a result, the validity and adequacy of an FAL can never be waived and should always be evaluated on a closed claim.

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