Mark A. Simon
Wenglewick v. Bantec, Inc., W. C. No. 4-595-287 (2005).
Mr. Simon is well-versed in the intricacies of the Colorado workers’ compensation system. Such knowledge allows Mr. Simon to recognize when an opposing party has failed to meet the requirements set forth by the rules of the system. This was the situation in the claim handled by Mr. Simon for his client, Connor Wenglewick. On February 23, 2005, Mr. Simon filed an Application for Hearing on the issues of penalties and temporary total disability benefits for Mr. Wenglewick. Mr. Simon particularly requested penalties for the respondents' for "failure to follow proper procedures regarding the termination of TTD (temporary total disability) benefits," and for "failure to file a Petition to Modify, Terminate or Suspend Benefits prior to terminating benefits; 8-43-304 C.R.S." On June 9, 2006, after the hearing, the administrative law judge (ALJ) struck Mr. Simon’s penalty issue from the Application for hearing for failing to specify to grounds for which the penalty was asserted. Mr. Simon met the ALJ’s dismissal with a timely appeal. Further, Mr. Simon objected to the respondent’s motion to dismiss for an interlocutory appeal and argued that because the June 9 order was also set on the issue of TTD, the order was immediately appealable. Despite finding that TTD were listed on the Application for Hearing, the ALJ held that the only issue decided at the May 10 hearing was penalties, not TTD. Further, the ALJ found that the only issue addressed by the June 10 order was penalties. Mr. Simon timely appealed the ALJ’s decision. To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Industrial Claim Appeals Office (the Panel) will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). On Appeal, the Panel agreed with the ALJ that the June 9 order did not preclude Mr. Simon from filing a new hearing application of the issues of penalties. Further the Panel held that the June 9 order was interlocutory and not currently reviewable.