Colorado § 8-43-303 - Reopening.

§ 8-43-303. Reopening.

(1) At any time within six years after the date of injury, the director or an administrative law judge may, after notice to all parties, review and reopen any award on the ground of fraud, an overpayment involving the circumstances described in section 8-42-113.5, an error, a mistake, or a change in condition, except for those settlements entered into pursuant to section 8-43-204 in which the claimant waived all rights to reopen an award; but a settlement may be reopened at any time on the ground of fraud or mutual mistake of material fact. In cases involving the circumstances described in section 8-42-113.5, recovery of overpayments shall be ordered in accordance with said section. If an award is reopened on grounds of an error, a mistake, or a change in condition, compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased. Reopening does not affect the earlier award as to money already paid except in cases of fraud. Any order entered under this subsection (1) is subject to review in the same manner as other orders.

(2) (a) At any time within two years after the date the last temporary or permanent disability benefits or dependent benefits excluding medical benefits become due or payable, the director or an administrative law judge may, after notice to all parties, review and reopen an award on the ground of fraud, an overpayment, an error, a mistake, or a change in condition, except for those settlements entered into pursuant to section 8-43-204 in which the claimant waived all right to reopen an award; but a settlement may be reopened at any time on the ground of fraud or mutual mistake of material fact. Upon a prima facie showing that the claimant received overpayments, the award shall be reopened solely as to overpayments and repayment shall be ordered. In cases involving the circumstances described in section 8-42-113.5, recovery of overpayments shall be ordered in accordance with said section. If an award is reopened under this paragraph (a) on grounds of an error, a mistake, or a change in condition, compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased. No such reopening shall affect the earlier award as to moneys already paid except in cases of fraud or overpayment. Any order entered under this paragraph (a) shall be subject to review in the same manner as other orders.

(b) At any time within two years after the date the last medical benefits become due and payable, the director or an administrative law judge may, after notice to all parties, review and reopen an award only as to medical benefits on the ground of an error, a mistake, or a change in condition, except for those settlements entered into pursuant to section 8-43-204 in which the claimant waived all right to reopen an award; but a settlement may be reopened at any time on the ground of fraud or mutual mistake of material fact. If an award is reopened under this paragraph (b), medical benefits previously ordered may be ended, diminished, maintained, or increased. No such reopening shall affect the earlier award as to moneys already paid. Any order entered under this paragraph (b) shall be subject to review in the same manner as other orders.

(3) (a) When a claimant has been awarded permanent total disability benefits, the award may be reopened at any time to determine if the claimant has returned to employment. If the claimant has returned to employment and has earned in excess of seven thousand five hundred dollars per year or has participated in activities that indicate that the claimant has the ability to return to employment and earn in excess of seven thousand five hundred dollars in a year, the claimant's permanent total disability award shall cease and the claimant is not entitled to further permanent total disability benefits as a result of the injury or occupational disease that led to the original permanent total disability award. Any subsequent permanent partial disability benefits awarded for the same injury or occupational disease shall be decreased by the amount of permanent total disability benefits previously received by the employee.

(b) On July 1, 2022, and each July 1 thereafter, for injuries sustained on or after January 1, 2022, the director shall adjust the amount of earnings required for ceasing permanent total disability by the percentage of the adjustment made by the director to the state average weekly wage pursuant to section 8-47-106.

(4) The party attempting to reopen an issue or claim shall bear the burden of proof as to any issues sought to be reopened.

Source: L. 90: Entire article R&RE, p. 509, § 1, effective July 1. L. 91: (3) added, p. 1323, § 34, effective July 1. L. 97: (1) and (2)(a) amended, p. 114, § 5, effective July 1. L. 2007: (4) added, p. 1474, § 8, effective May 30. L. 2021: (3) amended, (HB 21-1050), ch. 384, p. 2575, § 11, effective September 7; (1) amended, (HB 21-1207), ch. 149, p. 870, § 2, effective January 1, 2022.

Editor's note: This section is similar to former § 8-53-113 as it existed prior to 1990.

ANNOTATION

III. Change of Award.

I. GENERAL CONSIDERATION.

A. In General.

B. Statute of Limitations.

A. In General.

Law reviews. For article, "One Year Review of Contracts", see 37 Dicta 1 (1960). For article, "One Year Review of Torts", see 37 Dicta 67 (1960). For article, "Primer on Permanent Disability in the Colorado Workmen's Compensation Law", see 57 Den. L.J. 573 (1980). For article, "Brown and Root: When an ALJ's Order is an 'Award'", see 22 Colo. Law. 1927 (1993).

Annotator's note. (1) The following annotations include cases decided under former provisions similar to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which vested power in the director of the division of labor previously exercised by the industrial commission or were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred its powers, duties, and functions to the industrial claim appeals panel.

This section does not violate due process or equal protection by placing time limits on a claimant's right to reopen an award, whereas an employer may reopen at any time after an injured worker has resumed employment. Claimants and employers are not similarly situated, and there is a rational basis for the distinction. Calvert v. Indus. Claim Appeals Office, 155 P.3d 474 (Colo. App. 2006).

Section 8-40-201 (16.5)(a) and subsection (3) of this section are distinguishable because they affect persons who are not similarly situated to each other. The purpose of § 8-40-201 (16.5)(a) is to define permanent total disability for purposes of initially determining whether a claimant is eligible for permanent total disability benefits. In contrast, the purpose of subsection (3) of this section is to set a standard which employers must meet before a case can be reopened to determine whether an employee who has already been awarded permanent total disability benefits should continue to receive such benefits. Christie v. Coors Transp. Co., 933 P.2d 1330 (Colo. 1997).

The clear intent and purpose of this section was to give the industrial commission, within six years from the date of the accident, authority to review the proceeding which resulted in the conclusion that compensation had been paid, whether it is designated an "order", "decision", "judgment", or "finding and award". Brofman v. Indus. Comm'n, 117 Colo. 248, 186 P.2d 584 (1947).

Furthermore, the purpose of this statute is not to place arbitrary power in the hands of the commission, but to give it power, on request, to make equitable adjustments increasing awards where time has shown a change of condition. Mascitelli v. Giuliano & Sons Coal Co., 157 Colo. 240, 402 P.2d 192 (1965).

Legislative intent. The general assembly, in enacting this section, authorized the director to review awards, sua sponte. Gates Rubber Co. v. Indus. Comm'n, 647 P.2d 244 (Colo. App. 1982).

Where a claim has been closed, it is necessary to seek reopening under this section. Lewis v. Sci. Supply Co., Inc., 897 P.2d 905 (Colo. App. 1995).

Uncontested admission of liability became a "final" award, which could not be reopened except pursuant to statute, despite parties' assertion that fraud rendered award void ab initio. Lewis v. Sci. Supply Co., Inc., 897 P.2d 905 (Colo. App. 1995).

But reopening of a claim is not required for an employer to challenge future maintenance medical benefits because employers retain the right to challenge the relatedness of any maintenance medical treatment and because future maintenance medical benefits are, by their nature, not yet awarded, and therefore remain open despite an otherwise closed final admission of liability. Bolton v. Indus. Claim Appeals Office, 2019 COA 47, 487 P.3d 999.

Although this section limits the grounds on which an award may be reopened, the statute is broad enough to encompass the claimant's award that was closed automatically for failure to prosecute. Therefore, the director's show cause order may be reopened when the director simply invoked his discretion to amend the order and extend the time within which the claimant could show cause as to why his claim should not be dismissed. City of Denver v. Indus. Claim Appeals Office, 2021 COA 146, 506 P.3d 100.

This section provides a procedure, not a benefit. The ability to reopen an award is established under this article of the Workers' Compensation Act, which describes the procedures for notices, reports, settlement, hearings, petitions for review, enforcement, and penalties. It is not a benefit within the meaning of article 42 of the Act. Landeros v. Indus. Claim Appeals Office, 214 P.3d 544 (Colo. App. 2008).

The reopening authority under the provisions of this section is indicative of a strong legislative policy that, in workers' compensation matters, the goal of achieving a fair and just result overrides the interest of litigants in obtaining a final resolution of their dispute. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo. App. 1996).

In the context of workers' compensation matters, a "final" award means only that the matter has been concluded subject to later reopening if warranted under the applicable statutory criteria. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo. App. 1996).

The division-sponsored independent medical examination (DIME) scheme and the reopening procedures under this section as they concern a determination of maximum medical improvement (MMI) are not inconsistent and irreconcilable. MMI marks the point at which a claimant's condition has stabilized, and no further treatment can be reasonably expected to improve the condition. MMI is also considered a matter of diagnosis. A mistake in diagnosis has previously been held sufficient to justify reopening. Berg v. Indus. Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005).

Upon its own motion on the ground of error, mistake or change in condition, the commission may review any award, and if the statutory conditions are present may reopen any award whether interim or final, and adjust compensation in accordance with the standards of the act. Graden Coal Co. v. Ytuarralde, 137 Colo. 527, 328 P.2d 105 (1958); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962).

Even if a compensation agreement or statement has been entered between the parties and thereafter there is a change in the condition of the employee, on proper application or petition the agreement or settlement may be reviewed, and compensation increased or diminished, or the payment of compensation may be suspended or terminated. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 151 Colo. 18, 379 P.2d 153 (1962).

However, the commission is limited in its review to "error, mistake, or a change in conditions." Coursey v. Indus. Comm'n, 83 Colo. 490, 267 P. 202 (1928); Colo. Fuel & Iron Co. v. Indus. Comm'n, 85 Colo. 237, 275 P. 910 (1929); Independence Coffee & Spice Co. v. Taylor, 97 Colo. 242, 48 P.2d 798 (1935).

Collateral estoppel applies to all issues except "error, mistake, or a change in condition." Despite the fact that collateral estoppel does not usually apply to the same case, and the case is considered reopened under this section, the procedural posture should be considered to be analogous to a new proceeding. Therefore, when the elements of collateral estoppel are met, and the issue is not one of those enumerated in this section, collateral estoppel applies to previously decided issues. Cooper v. Indus. Claim Appeals Office, 998 P.2d 5 (Colo. App. 1999).

Administrative law judge (ALJ) has no inherent authority to order repayment in cases of fraud, but may terminate future payments. Lewis v. Sci. Supply Co., Inc., 897 P.2d 905 (Colo. App. 1995).

It is immaterial on the question of the validity of a review who moves for the review or whether anyone does. Indus. Comm'n v. Nissen, 84 Colo. 19, 267 P. 791 (1928); Serv. Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).

And there is no restriction in this section as to the number of times a case may be reopened, and when based upon new or different evidence no such limitation may be imposed by the courts, that being a matter for legislative expression. Graden Coal Co. v. Ytuarralde, 137 Colo. 527, 328 P.2d 105 (1958).

So that a claimant is not precluded from filing a first and second petition to reopen a compensation case, even though the award first entered has become final, since this section expressly grants the commission power to reopen any case within the time provided therein; there being no restrictions in the statute as to the number of times a case may be reopened based upon new or different evidence, no such limitation may be imposed by the courts. Graden Coal Co. v. Ytuarralde, 137 Colo. 527, 328 P.2d 105 (1958).

Petition is merely a means of calling attention to right to reopen. This section grants the exclusive right to reopen to the commission, and a claimant's petition is merely a means of calling attention to the fact such action should be taken. Univ. of Denver v. Indus. Comm'n, 138 Colo. 505, 335 P.2d 292 (1959).

"Change in condition" means a change in the claimant's physical or mental condition and does not include a change in his economic conditions. Lucero v. Climax Molybdenum Co., 710 P.2d 1191 (Colo. App. 1985), aff'd, 732 P. 2d 642 (Colo. 1987); Brasher v. Indus. Comm'n, 717 P.2d 990 (Colo. App. 1986), aff'd sub nom. Lucero v. Climax Molybdenum Co., 732 P. 2d 642 (Colo. 1987).

The phrase "change in condition" in this section refers to a change in the physical condition of claimant and not to changes in economic circumstances alone. George v. Indus. Comm'n, 720 P.2d 624 (Colo. App. 1986).

"Change in condition" exception applies to the physical condition of an injured worker and is inapplicable where the injured worker dies and the disability benefits are replaced by death benefits payable to the decedent's dependents. Ward v. Ward, 928 P.2d 739 (Colo. App. 1996).

"Change in condition" refers to the underlying condition, not to a change in the medication used to treat it. Richards v. Indus. Claim Appeals Office, 996 P.2d 756 (Colo. App. 2000).

The word "mistake", as used in this section, means any mistake, whether of law or fact. State Comp. Ins. Fund v. Indus. Comm'n, 80 Colo. 130, 249 P. 653 (1926); Gregorich v. Indus. Comm'n, 117 Colo. 423, 188 P.2d 886 (1948).

A "mistake of law" which justifies reopening of a workers' compensation matter under this section may be established if an original order is inconsistent with a subsequent judicial interpretation of a controlling statutory provision. Further, it is immaterial to the reopening analysis under the foregoing statutory criteria whether the prior order premised on a mistake of law has been upheld by an appellate court. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Cesario v. Bldg. Servs. Sys. Inc., 962 P.2d 292 (Colo. App. 1997).

Mistake of fact may result when the state of the medical art advances to the point that new evidence becomes available, and such new evidence was not and could not have been previously available to the treating physician. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo. App. 1989).

Mistake in diagnosis held sufficient to justify reopening a claim. Berg v. Indus. Claim Appeals Office, 128 P.3d 270 (Colo. App. 2005).

Parties' mistaken belief that claimant was ineligible for dependent benefits constituted sufficient basis for reopening the case. Exeter Drilling v. Indus. Claim Appeals Office, 801 P.2d 20 (Colo. App. 1990).

"Mistake" includes fraud. Lewis v. Sci. Supply Co., Inc., 897 P.2d 905 (Colo. App. 1995).

But the words "due and payable" present a slight ambiguity as here used, because the general assembly has not stated whether it applies to commuted payments or to periodic payments or to a combination of such payments. Univ. of Denver v. Indus. Comm'n, 138 Colo. 505, 335 P.2d 292 (1959).

In any event, a payment of compensation cannot be "due and payable" when it never has been considered or ordered. Dr. Pepper Bottling Co. v. Indus. Comm'n, 134 Colo. 238, 301 P.2d 710 (1956).

Payment in full does not bar the review under this section. Employers' Mut. Ins. Co. v. Indus. Comm'n, 83 Colo. 315, 265 P. 99 (1928); Employers' Mut. Ins. Co. v. Jacoe, 102 Colo. 515, 81 P.2d 389 (1938).

Nor does the failure to award claimant any compensation. The failure of the commission to award claimant any compensation did not operate to prevent that body, by a supplemental or subsequent award, if it had jurisdiction to make a supplemental award, from providing compensation in such sum as it deemed the evidence warranted. This would be proper under this section because an award of a substantial sum would be a larger sum than no award at all. Indus. Comm'n v. Employers' Liab. Assurance Corp., 78 Colo. 267, 241 P. 729 (1925).

A reopening under subsection (1) reopens an award not just specific issues raised by claimant in a petition to reopen. Avalanche Indus. v. Indus. Claim Appeals Office, 166 P.3d 147 (Colo. App. 2007), aff'd on other grounds, 198 P.3d 589 (Colo. 2008).

Reopening a case is not warranted if, once reopened, no additional benefits may be awarded. Richards v. Indus. Claim Appeals Office, 996 P.2d 756 (Colo. App. 2000).

Commission not required to give reason for reopening case. Colo. Fuel & Iron Co. v. Indus. Comm'n, 85 Colo. 237, 275 P. 910 (1929).

Likewise, it is not obligated to state the reasons for refusal to reopen a case. Kokel v. Indus. Comm'n, 111 Colo. 188, 139 P.2d 259 (1943); Beckley v. Indus. Comm'n, 112 Colo. 135, 146 P.2d 990 (1944); Md. Cas. Co. v. Kravig, 153 Colo. 282, 385 P.2d 669 (1963); Hoover v. Indus. Comm'n, 156 Colo. 147, 397 P.2d 223 (1964); Serv. Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).

Since the question of the right to reopen a workmen's compensation case is jurisdictional, a denial of the petition to reopen requires no findings. Md. Cas. Co. v. Kravig, 153 Colo. 282, 385 P.2d 669 (1963); Hoover v. Indus. Comm'n, 156 Colo. 147, 397 P.2d 223 (1964).

To warrant a reopening of a case, it is not necessary to make a showing that a worker's industrial disability has increased because a reopening is also appropriate where additional medical and temporary disability benefits are warranted. Dorman v. B & W Const. Co., 765 P.2d 1033 (Colo. App. 1988).

An authorized treating physician's finding of increased impairment does not require reopening as a matter of law. Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220 (Colo. App. 2008).

Even if the evidence does not support the denial, no error occurs because in this type of reopening, being jurisdictional, no findings are required. Hoover v. Indus. Comm'n, 156 Colo. 147, 397 P.2d 223 (1964).

Only if a petition to reopen is granted are specific findings mandatory as to the particular error, mistake, or change of condition. Sherratt v. Rocky Mt. Fuel Co., 94 Colo. 369, 30 P.2d 270 (1934); Rocky Mt. Fuel Co. v. Canivez, 96 Colo. 198, 40 P.2d 618 (1935); Rocky Mt. Fuel Co. v. Sherratt, 96 Colo. 463, 45 P.2d 643 (1935); Mishmish v. Hayden Coal Co., 98 Colo. 373, 56 P.2d 21 (1936); Century Indem. Co. v. Klipfel, 99 Colo. 213, 61 P.2d 842 (1936); Nat'l Lumber & Creosoting Co. v. Kelly, 99 Colo. 442, 63 P.2d 457 (1936); Allan v. Gadbois, 100 Colo. 141, 66 P.2d 331 (1937); Kokel v. Indus. Comm'n, 111 Colo. 188, 139 P.2d 259 (1943); Md. Cas. Co v. Kravig, 153 Colo. 282, 385 P.2d 669 (1963); Hoover v. Indus. Comm'n, 156 Colo. 147, 397 P.2d 223 (1964).

When acting on a petition to reopen, the industrial commission is required to include findings concerning workers' compensation claimant's request for vocational rehabilitation in its order where claimant was potentially entitled to vocational rehabilitation based on industrial disability. George v. Indus. Comm'n, 720 P.2d 624 (Colo. App. 1986).

Finding of director on employee's application for admission to major medical fund was not binding on hearing officer concerning employee's petition to reopen and in determining whether employee was entitled to additional benefits. Brothers v. Indus. Comm'n, 733 P.2d 1217 (Colo. App. 1987).

For once having reopened a case the commission is obligated to decide the issues presented in all respects, as upon original hearing. Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957).

After reopening, an order dismissing application to reopen will not be upheld. Where the commission reopens a case, holds a hearing and takes evidence, an order providing that a claimant's application to reopen the case is dismissed will not be upheld. Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957).

Furthermore, an order denying a petition to reopen a claim entered without hearing or notice to the claimant is invalid and the director of the division of labor has jurisdiction to correct the error. James v. Irrigation Motor & Pump Co., 180 Colo. 195, 503 P.2d 1025 (1972).

Likewise, once an award is reopened, the commission is required to give notice of a hearing to the parties interested, and to make specific findings of fact as to the error or mistake or change of condition, whether it modifies the original award or affirms it. Serv. Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).

Director must give notice of claims. The director who reopens the case on his own motion must necessarily give the opposing parties notice as of the claims they will be required to defend. Berkley Moving & Storage Co. v. Eubank, 193 Colo. 334, 566 P.2d 359 (1977).

When the director reopens a case on his own motion, notice must be given to opposing parties of the claims they would be required to defend. Gates Rubber Co. v. Indus. Comm'n, 647 P.2d 244 (Colo. App. 1982).

Notice to interested parties. The essential requirement of this section is that the claimant give the commission notice of his intention to reopen the award. State Comp. Ins. Fund v. Indus. Comm'n, 697 P.2d 807 (Colo. App. 1985).

After an award becomes final, the only way the case may be reopened is by the commission upon its own motion. Clayton Coal Co. v. Zak, 94 Colo. 171, 29 P.2d 374 (1933); Indus. Comm'n v. Kokel, 108 Colo. 353, 116 P.2d 915 (1941).

Since the courts have no authority to order a reopening. Winteroth v. Indus. Comm'n, 93 Colo. 38, 22 P.2d 865 (1933).

In absence of formal award, the approval of an admission of liability coupled with payments constitutes award. Although no formal award was ever ordered, the commission does not retain continuing jurisdiction, since the action which the commission took when it approved the insurance carrier admission of general liability together with the payment to the claimant of benefits constituted an award for all intents and purposes under the statute. Harlan v. Indus. Comm'n, 167 Colo. 413, 447 P.2d 1009 (1968); Irrigation Motor & Pump Co. v. Indus. Comm'n, 30 Colo. App. 289, 494 P.2d 144 (1971).

Last payment operates to close matter of award. Under the clear provision of this section it is the last payment of benefits which is significant and which operates to close the matter of an award. Harlan v. Indus. Comm'n, 167 Colo. 413, 447 P.2d 1009 (1968).

But order reopening award is not final award. An order reopening an award for purpose of determining whether mistake, error, or change of condition is present is not a final order and is not reviewable by the courts, only awards which are final being reviewable. Stanley Hotel v. Thomas, 153 Colo. 503, 387 P.2d 27 (1963).

If an order grants or denies temporary benefits and does not address the issue of permanent benefits, but expressly reserves jurisdiction over the latter subject, no award has been entered, and thus, no petition for reopening is required, until a proper order closing the matter is entered. Brown & Root v. Indus. Claim Appeals Office, 833 P.2d 780 (Colo. App. 1991); El Paso County DSS v. Donn, 865 P.2d 877 (Colo. App. 1993).

The commission retains jurisdiction to deal with any further disability appearing that can be directly traced to the original injury if such appears for consideration within the six-year period of limitations provided by this section. It makes no difference if the disability manifests itself at first or at a later time. Compensation is to be allowed for such further disability, within the limitation period, even though it was not contemplated in the first award. Safeway Stores v. Newman, 123 Colo. 362, 230 P.2d 168 (1951).

Evidentiary hearing required upon petition to reopen. A petition to reopen, under this section, based on alleged error, mistake or change in condition after a final order of the commission, requires the referee (now hearing officer) to hold a further evidentiary hearing. Eisnach v. Indus. Comm'n, 633 P.2d 502 (Colo. App. 1981).

Testimony of medical experts and lay witnesses is competent as to changes in claimant's physical condition and the weight to be given to such testimony is a matter for the commission. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941).

Continued medical treatment is not inconsistent with award of permanent partial disability. Though worker may reach MMI, continued medical treatment may be necessary to prevent deterioration in worker's physical condition. Grover v. Indus. Comm'n, 759 P.2d 705 (Colo. 1988).

Use of word "award" by commission to designate the decision not to reopen a case under the provisions of this section is not to be commended, since that word properly designates only a decision upon the merits of a presented claim. Indus. Comm'n v. Kokel, 108 Colo. 353, 116 P.2d 915 (1941).

Error by ALJ referring to claimant meeting her "burden of proof in establishing a worsening of condition" was harmless where ALJ focused on causation between the industrial injury and claimant's back condition. El Paso County DSS v. Donn, 865 P.2d 877 (Colo. App. 1993).

ALJ's order that reserved jurisdiction over permanent disability benefits is not an award under this section. Thus, a petition to reopen claim to pursue such benefits is not required until an order is entered that closes the matter. Brown & Root v. Indus. Claim Appeals Office, 833 P.2d 780 (Colo. App. 1992).

Determination of whether a prior order constitutes an "award" within the meaning of this section requires an analysis of the prior order itself and cannot be made by application of a "same issue" or "res judicata" analysis. L.E.L. Const. v. Goode, 849 P.2d 876 (Colo. App. 1992).

A medical utilization review order under § 8-43-501 is not an award within the scope of this section and the director is not authorized to reopen such an order. Cramer v. Indus. Claim Appeals Office, 885 P.2d 318 (Colo. App. 1994).

In considering the propriety of reviewing an award the commission is not required to conduct a hearing to determine the validity of the facts recited in the petition therefor where in its opinion such facts, if accepted as alleged, would present no basis for reopening the final award. Contes v. Metros, 113 Colo. 1, 153 P.2d 1000 (1944).

Excusable neglect is not a ground for reopening. Klosterman v. Indus. Comm'n, 694 P.2d 873 (Colo. App. 1984).

The word "work" in this section has not been interpreted to mean "all work". Instead, where a claimant possesses residual unimpaired job skills, the critical inquiry is whether these skills are such as to enable the claimant to obtain suitable, remunerative employment. Osborne v. Indus. Comm'n, 725 P.2d 63 (Colo. App. 1986).

The same inquiry is appropriate whether or not the claimant has used these residual skills to obtain employment. Otherwise, any claimant who, because of necessity or efforts to make the best of his misfortune, has accepted unsuitable or unremunerative employment would be disqualified from vocational rehabilitation. Osborne v. Indus. Comm'n, 725 P.2d 63 (Colo. App. 1986).

Settlement agreement in workers' compensation case may relinquish any no-fault auto benefit claims. Settlement agreement in workers' compensation case which waived future medical and rehabilitation benefits under workers' compensation act resulted in relinquishment of claims for benefits under no-fault act as a result of § 10-4-707 (5). Comiskey v. Valley Forge Ins. Co., 781 P.2d 188 (Colo. App. 1989).

ALJ properly found settlement was voidable on ground claimant was mentally incompetent at time he entered into settlement agreement. Powderhorn Coal Co. v. Weaver, 835 P.2d 616 (Colo. App. 1992).

Applied in Colo. Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966); Dziewior v. Mich. Gen. Corp., 672 P.2d 1026 (Colo. App. 1983); Chavez v. Indus. Comm'n, 714 P.2d 1328 (Colo. App. 1985); Swerdfeger v. Swerdfeger, 793 P.2d 618 (Colo. App. 1990).

B. Statute of Limitations.

Statutes of limitation are remedial in nature. The application of a remedial statute of limitation to an existing claim for relief does not violate the prohibition against retrospective legislation. Vetten v. Indus. Claim Appeals Office, 986 P.2d 983 (Colo. App. 1999).

Time limits on the ability to reopen are necessary to avoid inherent administrative and practical difficulties such as the proof problems associated with old injuries, the need to preserve full case records indefinitely, and the inability of insurance carriers to predict their future liability. Calvert v. Indus. Claim Appeals Office, 155 P.3d 474 (Colo. App. 2006).

The time limits set forth in this section operate as a statute of limitations and apply when complications develop directly from the original injury, even if the claimant attempts to classify the condition as a new disability. Calvert v. Indus. Claim Appeals Office, 155 P.3d 474 (Colo. App. 2006).

Review barred by lapse of time. Where more than six years have elapsed from the date of an accident before claimant's "petition to reopen" is filed, and more than two years have expired after the approval of the statutory amendment, declining to reopen the case under this section is correct. Brofman v. Indus. Comm'n, 117 Colo. 248, 186 P.2d 585 (1947).

The statute of limitations does not begin to run until the award is in fact made. Dr. Pepper Bottling Co. v. Indus. Comm'n, 134 Colo. 238, 301 P.2d 710 (1956).

Distinction between triggering events. Aside from the general six-year limitation period in subsection (1), there is a two-year limitation period under subsection (2)(b) that is specifically applicable to medical benefits. Calvert v. Indus. Claim Appeals Office, 155 P.3d 474 (Colo. App. 2006).

The six-year period of limitation begins running on the date of injury. The limitation period is not extended when changes of condition manifest themselves after the period has expired. Thye v. Vermeer Sales & Serv., 662 P.2d 188 (Colo. App. 1983).

Statute of limitation for reopening workers' compensation claim begins to run from the date of the onset of disability, and not from the date of the last exposure to the occupational disease. Because claimant's petition to reopen was filed more than six years after the date of the onset of disability, that claim is barred from being reopened under this section. Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo. App. 1998).

The "last injurious exposure rule" governs the apportionment of liability for an occupational disease between multiple employers or insurers, but does not determine the date on which a claimant has sustained a compensable occupational disease. Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo. App. 1998).

For purposes of this section, the onset of disability occurs when the occupational disease impairs the claimant's ability effectively and properly to perform his or her regular employment, or rendered the claimant incapable of returning to work except in a restricted capacity. Ricks v. Indus. Claim Appeals Office, 809 P.2d 1118 (Colo. App. 1991); Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo. App. 1998).

Time within which commission can reopen fixed as of date of final award. The time provided by this section within which the commission can reopen a case on any of the statutory grounds becomes fixed as of the date of a final award regardless of whether the sum is paid periodically or later commuted. Univ. of Denver v. Indus. Comm'n, 138 Colo. 505, 335 P.2d 292 (1959).

If only one claim for dependency benefits has been filed, the time period for filing a petition to reopen is governed by the payment of compensation to any dependent listed in the initial claim. Exeter Drilling v. Indus. Claim Appeals Office, 801 P.2d 20 (Colo. App. 1990).

In case of full payment, statute of limitations based on termination date if paid periodically. Where a claimant under the workmen's compensation statute has been awarded compensation and has received a lump sum in settlement and executed a receipt therefor acknowledging it to be received in full payment of the award for all injuries or disablement, the statutory period of time under this section, relating to the time within which the commission may reopen the case due to a change in condition begins to run, not from, the date of the payment, but from the date when periodic payments would terminate if such payments were made in monthly installments as originally ordered. Univ. of Denver v. Indus. Comm'n, 138 Colo. 505, 335 P.2d 292 (1959).

However, where award operates retroactively, statute runs from date award ordered. Where an award of compensation is made to operate retroactively, the statute of limitations governing such claim under the workmen's compensation act runs from the date on which the commission orders the award to be made, rather than from the date the last payment would have been made had there been continuous monthly payments during the time covered by the final award. Dr. Pepper Bottling Co. v. Indus. Comm'n, 134 Colo. 238, 301 P.2d 710 (1956).

Thus, the statute of limitations applies differently where no compensation has been paid than it does where compensation has been paid. James v. Irrigation Motor & Pump Co., 180 Colo. 195, 503 P.2d 1025 (1972).

The time limitation of this section is not a limitation of authority or jurisdiction. Ball v. Indus. Comm'n, 30 Colo. App. 583, 503 P.2d 1040 (1972).

Rather, the limitation is a legal defense which may be pled as a bar to a claim. Ball v. Indus. Comm'n, 30 Colo. App. 583, 503 P.2d 1040 (1972).

And if it were held that the time limit in this section was jurisdictional, it would be denying assistance to workers who are unable to act within the statutory period for reasons commonly recognized as sufficient to prevent the barring of a cause of action. Ball v. Indus. Comm'n, 30 Colo. App. 583, 503 P.2d 1040 (1972).

Petition to reopen received before the time for review expires tolls the statute pending final determination of the petition. Irrigation Motor & Pump Co. v. Indus. Comm'n, 30 Colo. App. 289, 494 P.2d 144 (1971); James v. Irrigation Motor & Pump Co., 180 Colo. 195, 503 P.2d 1025 (1972).

Failure to notify claimant's attorney of admission of liability tolls the two-year statute of limitations. Hall v. Home Furniture Co., 724 P.2d 94 (Colo. App. 1986).

Statute of limitations remains tolled until final disposition of appeal and subsequent proceedings directed as a result thereof, where prior action which determines the propriety of a petition to reopen remains unresolved, and where such prior claim was timely and limitation period expired during substantial delay unattributable to claimant. Valdez v. United Parcel Serv., 728 P.2d 340 (Colo. App. 1986).

Voluntary authorization of additional medical treatment by former employer after order closing case was issued effectively extended the time within which the claimant could file a petition to reopen the case for additional medical benefits. Garrett v. Arrowhead Imp. Ass'n, 815 P.2d 979 (Colo. App. 1991).

Once the statute of limitations is raised as an affirmative defense, the burden shifts to the plaintiff to show that the statute has been tolled. Garrett v. Arrowhead Imp. Ass'n, 826 P.2d 850 (Colo. 1992).

Equity will toll a statute of limitations if a party fails to disclose information that the party is legally required to reveal when such failure results in prejudice to the opposing party. Garrett v. Arrowhead Imp. Ass'n, 826 P.2d 850 (Colo. 1992).

Determination as to whether two-year statute of limitations on a petition to reopen the issue of permanent disability should have been equitably tolled requires factual finding as to whether claimant was prejudiced by failure of employer to furnish claimant with a copy of a medical report disclosing a worsened medical condition. Garrett v. Arrowhead Imp. Ass'n, 826 P.2d 850 (Colo. 1992).

And once a claimant properly files his notice within the statutory period, he is within its protection. Mascitelli v. Giuliano & Sons Coal Co., 157 Colo. 240, 402 P.2d 192 (1965).

Filing a notice to have a claim reopened before the end of the period effectively tolls the running of the statute. Claimant's petition to reopen his claim was not time barred, and the six-year period to reopen a claim is tolled on the date claimant files a petition to reopen. Fed. Express v. Indus. Claim Appeals Office, 51 P.3d 1107 (Colo. App. 2002).

Once the statute of limitations for reopening a claim under this section has expired, a party can no longer pursue penalties in that claim. Reopening must be requested within the later of six years of a claimant's date of injury or two years after the last disability or medical benefit becomes due or payable. Macaulay v. Villegas, 2022 COA 40M, 513 P.3d 1117.

An injured worker had to reopen his case under this section before initiating a penalty claim under § 8-43-304 (5). The injured worker's penalty claim was not governed solely by the statute of limitations in § 8-43-304 (5), but could be brought only if the injured worker's case was still open or the injured worker first reopened the case under this section. Because the injured worker's case was closed and he failed to reopen his case before the statute of limitations dictated by this section expired, the injured worker's claim for penalties was dismissed as time-barred. Macaulay v. Villegas, 2022 COA 40M, 513 P.3d 1117.

The requirement for an injured worker to reopen his case within this section's statute of limitations before asserting penalties governed by § 8-43-304 (5) applied to the injured worker's penalty claim against the doctor who oversaw his workers' compensation examination. Macaulay v. Villegas, 2022 COA 40M, 513 P.3d 1117.

Determination of jurisdiction is only a determination that statute has not run. A determination by the commission that it has jurisdiction to decide whether there was error, mistake, or a change in a claimant's condition, and to enter an award of further compensation if it finds that such error, mistake, or change of condition is present, is a determination by the commission only that the six-year statute of limitations has not run of the particular case before it. As such it was not a final order of the commission. Stanley Hotel v. Thomas, 153 Colo. 503, 387 P.2d 27 (1963).

Effect of disability of claimant on statute of limitations. The time limitation of the statute which allows the director to change previous awards within six years of an accident is tolled by § 13-81-103 which provides that if a person who has a right of action and is under disability is represented by legal representative appointed after the right accrues, the representative has not less than two years from his appointment to bring action for the disabled person even though the two-year period expires after the expiration of the six-year period. Ball v. Indus. Comm'n, 30 Colo. App. 583, 503 P.2d 1040 (1972).

If injured employee was under disability at time his right to compensation occurred and continued to be under disability at time he filed petition to reopen, the statute of limitations could not run against employee for whom a legal representative had not been appointed. James v. Brookhart Lumber Co., 727 P.2d 1119 (Colo. App. 1986).

A DIME is not a medical benefit, therefore it does not extend the statute of limitations period to reopen an award set forth in subsection (2)(b). Jones v. Indus. Claim Appeals Office, 216 P.3d 619 (Colo. App. 2009).

The defense of laches is not available where the award is made under this provision. Employers' Mut. Ins. Co. v. Jacoe, 102 Colo. 515, 81 P.2d 389 (1938).

Review of invalid award is without legal effect. Where a review under § 8-53-106 (now § 8-53-111) is void because no petition therefor was filed in apt time, a subsequent review upon the commission's own motion, pursuant to this section, conducted without notice to the employer or insurance carrier, does not validate the award made on the first review, and the entire proceedings are without legal effect. Tyler v. Hagerman, 88 Colo. 60, 291 P. 1033 (1930).

Industrial commission was not proper forum in which to raise or decide the issue of whether workers' compensation claimant was under a disability for purposes of tolling workers' compensation statute of limitations. An interested person must petition the court for a specific finding as to the existence of a legal disability. James v. Brookhart Lumber Co., 727 P.2d 1119 (Colo. App. 1986) (decided prior to 1986 abolishment of industrial commission).

II. DISCRETIONARY POWER OF REVIEW.

A. In General.

B. Abuse of Discretion.

A. In General.

Under this section the commission has power to review any award. Coursey v. Indus. Comm'n, 83 Colo. 490, 267 P. 202 (1928).

The reopening authority under the provisions of this section is permissive and is in the sound discretion of the ALJ. The appropriate inquiry is whether the claimant has suffered a deterioration in his condition that justifies additional benefits. MMI evidence would be relevant, but the original determination is not questioned. Therefore, the opinion of a DIME examination carries no special weight and need not be overcome by clear and convincing evidence. The opinions of such a physician have only been given presumptive effect when expressly required by the statute. Cordova v. Indus. Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

ALJ has broad discretionary authority to determine whether claimant has met his burden of proof justifying reopening a claim. Kilpatrick v. Indus. Claim Appeals Office, 2015 COA 30, 356 P.3d 1008.

Effect of settlements on reopening. In view of prior cases, the beneficial purposes of the act and the language of § 8-51-108 and this section, the conclusion is inescapable that the general assembly has given the director authority to reopen a case within requisite time limitations regardless of whether there was a settlement. Padilla v. Indus. Comm'n, 696 P.2d 273 (Colo. 1985) (decided prior to 1985 amendment).

A judgment of the district court that an award of the commission is in full force and effect gives it no additional virtue; it is still an award subject to modification or vacation by it, under the powers conferred by this section. Coursey v. Indus. Comm'n, 83 Colo. 490, 267 P. 202 (1928).

A bona fide settlement is the equivalent of an award or judgment reached upon evidence. In the absence of proof that fraud was practiced or that a fundamental mistake occurred without the fault of the claimant, it is presumed that the facts upon which a compensation settlement is based were fully presented to each other by the contracting parties. Independence Coffee & Spice Co. v. Taylor, 97 Colo. 242, 48 P.2d 798 (1935).

And may be held conclusive. An amicable, bona fide settlement between an employer and an employee of a claim for injuries sustained in the course of employment by the latter, and which is approved by the commission, held conclusive under the circumstances of the case, and the action of the commission in reopening the case on its own motion and making an award of compensation for permanent injuries 10 years after the happening of the accident under investigation, is set aside. Independence Coffee & Spice Co. v. Taylor, 97 Colo. 242, 48 P.2d 798 (1935), distinguishing London Guarantee & Accident Co. v. Sauer, 92 Colo. 565, 22 P.2d 624 (1933).

However, parties cannot by contract abrogate requirements of conditions affecting public policy. While in the usual contractual sense, the payment of an award in a lump sum leaves nothing further due and payable to a claimant, parties cannot by private contract abrogate statutory requirements of conditions affecting the public policy of the state. Univ. of Denver v. Indus. Comm'n, 138 Colo. 505, 335 P.2d 292 (1959).

The power given to the commission to review an award of its own motion is discretionary. State Comp. Ins. Fund v. Indus. Comm'n, 80 Colo. 130, 249 P. 653 (1926); Mantor v. Indus. Comm'n, 89 Colo. 90, 299 P. 11 (1931); Indus. Comm'n v. Lockard, 90 Colo. 333, 9 P.2d 286 (1932); Winteroth v. Indus. Comm'n, 93 Colo. 38, 22 P.2d 865 (1933); Pollard v. Indus. Comm'n, 95 Colo. 572, 37 P.2d 1093 (1934).

This section confers ample power upon the commission to reopen a case in its sound discretion for a supplemental hearing whenever any natural development of an industrial injury, uninfluenced by an independent intervening cause, becomes apparent. Post Printing & Publ'g Co. v. Erickson, 94 Colo. 382, 30 P.2d 327 (1934); Emp'rs Mut. Ins. Co. v. Jacoe, 102 Colo. 515, 81 P.2d 389 (1938).

Discretion of commission is absolute. When a matter is before the commission, on its own motion to reopen on the ground of error, mistake or change of condition after a notice of hearing to the interested parties, the problem of making a prima facie showing and thereby shifting the burden of proof to the defendants does not arise. The discretion of the commission, in the absence of fraud or a clear abuse of discretion, has been held to be absolute. Hoover v. Indus. Comm'n, 156 Colo. 147, 397 P.2d 223 (1964).

And this section is a permissive statute. It permits, but does not require, the commission to reopen a case upon certain grounds. Mantor v. Indus. Comm'n, 89 Colo. 90, 299 P. 11 (1931); Indus. Comm'n v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967).

This section is a permissive statute. This section is purely permissive and vests broad discretion to reopen or not to reopen a case in the commission of the division of labor, subject to review by the commission. Wallace v. Indus. Comm'n, 629 P.2d 1091 (Colo. App. 1981).

But the commission cannot change its findings and award, once made, through caprice or without stated reasons; but there will be no interference with its discretion to review its findings and change its award — unless there is an abuse of discretion or a showing of fraud — when there is evidence which will reasonably support a change. Rocky Mt. Fuel Co. v. Canivez, 96 Colo. 198, 40 P.2d 618 (1935).

Referee's (now hearing officer's) mistake of law provides ample cause for reopening claimant's case. Travelers Ins. Co. v. Indus. Comm'n, 646 P.2d 399 (Colo. App. 1981).

B. Abuse of Discretion.

The discretion of the director in reopening claims is absolute unless there is fraud or a clear abuse of discretion. In re Brunetti v. Indus. Comm'n, 670 P.2d 1246 (Colo. App. 1983); Osborne v. Indus. Comm'n, 725 P.2d 63 (Colo. App. 1986); Wilson v. Jim Snyder Drilling, 747 P.2d 647 (Colo. 1987).

The court will not interfere with the commission's (now director's) actions except in case of fraud or abuse of discretion. State Comp. Ins. Fund v. Indus. Comm'n, 80 Colo. 130, 249 P. 653 (1926); Mantor v. Indus. Comm'n, 89 Colo. 90, 299 P. 11 (1931); Indus. Comm'n v. Lockard, 89 Colo. 428, 3 P.2d 416 (1931); Lockard v. Indus. Comm'n, 91 Colo. 212, 13 P.2d 1117 (1932); Pollard v. Indus. Comm'n, 95 Colo. 572, 37 P.2d 1093 (1934); Indus. Comm'n v. Kokel, 108 Colo. 353, 116 P.2d 915 (1941); Kokel v. Indus. Comm'n, 111 Colo. 188, 139 P.2d 259 (1943); Beckley v. Indus. Comm'n, 112 Colo. 135, 146 P.2d 990 (1944); Contes v. Metros, 113 Colo. 1, 153 P.2d 1000 (1944); Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957); Indus. Comm'n v. Vigil, 150 Colo. 356, 373 P.2d 308 (1962); Indus. Comm'n v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Travelers Ins. Co. v. Indus. Comm'n, 646 P.2d 399 (Colo. App. 1981); Osborne v. Indus. Comm'n, 725 P.2d 63 (Colo. App. 1986).

Evidence failing to show abuse of discretion in refusing to reopen. Where employee failed to mention to the original attending physicians an alleged ankle injury in addition to a knee injury for which he was allowed compensation, upon which his request for a reopening was based, and none of those physicians discovered any simultaneous injury to the ankle on the very leg examined by them shortly after the accident to the knee, the evidence failed to show that the commission abused its discretion in refusing to reopen the case for purpose of showing injury to the ankle. Indus. Comm'n v. Kokel, 108 Colo. 353, 116 P.2d 915 (1941); Kokel v. Indus. Comm'n, 111 Colo. 188, 139 P.2d 259 (1943).

Where a doctor's report was sufficient to assist the division in determining whether claimant could present a prima facie case of changed condition, the failure of the hearing officer to deny claimant's petition to reopen for failure to comply with a commission rule requiring the doctor's report to contain an estimate of the percentage of impairment and the additional periods of temporary disability, if any, did not constitute an abuse of discretion. Osborne v. Indus. Comm'n, 725 P.2d 63 (Colo. App. 1986).

And to justify a court in interfering the showing of fraud or of an abuse of discretion must be very clear indeed. Pollard v. Indus. Comm'n, 95 Colo. 572, 37 P.2d 1093 (1934); Contes v. Metros, 113 Colo. 1, 153 P.2d 1000 (1944).

But courts may require the commission to exercise its discretion in a proper case. Lockard v. Indus. Comm'n, 91 Colo. 212, 13 P.2d 1117 (1932).

And this is true where the refusal is based upon the erroneous view that the commission has no jurisdiction. Indus. Comm'n v. Lockard, 89 Colo. 428, 3 P.2d 416 (1931); Gregorich v. Indus. Comm'n, 117 Colo. 423, 118 P.2d 886 (1948).

If fraud or abuse of discretion is shown, the case should be remanded to the commission for further proceedings. Indus. Comm'n v. Lockard, 90 Colo. 333, 9 P.2d 286 (1932).

But no abuse of discretion when right to review lost by inaction. The fact that the director refused to reopen a case to permit him to substitute action under this section for the right to review granted him by § 8-53-106 (now § 8-53-111) which he lost by inaction, does not amount to an abuse of discretion. Indus. Comm'n v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Colo. Dept. of Agric. v. Wayne, 30 Colo. App. 311, 493 P.2d 683 (1971).

And no abuse of discretion where petition to reopen was denied because petition was filed to circumvent higher burden of proof. Denial of petition to reopen was not an abuse of discretion where substantial evidence supported the ALJ's determination that the claimant filed the petition as a strategic move to avoid the higher burden of proof involved in trying to overcome a finding of MMI by a DIME. Justiniano v. Indus. Claim Appeals Office, 2016 COA 83, 410 P.3d 659.

And court cannot demand statement of commission's reasons for refusing to review. On review by district court of proceedings before the commission, an order of court calling for a statement of the reasons for the refusal to reopen the case for further proceedings on its own motion is erroneous. Indus. Comm'n v. Lockard, 90 Colo. 333, 9 P.2d 286 (1932).

III. CHANGE OF AWARD.

Where commission changes award it is assumed that commission concluded that it had previously erred. Where the commission on its own motion enters a supplemental award of compensation for permanent disability, the original award being for temporary disability only, it will be assumed on review that the commission concluded that it had previously erred, and an award correcting the error will not be disturbed. Clayton Coal Co. v. Zak, 94 Colo. 171, 29 P.2d 374 (1933).

Example of error by commission. If the commission was led or induced to find from the showing on a hearing that a claimant's injury was not suffered in the course of his employment, but was due to diseases from which he suffered long before, and if the evidence then produced before the commission upon which such finding was made was false or perjured testimony, the commission might, according to the plain terms of this section, set aside its award or order and enter a different award if the showing before it was sufficient to prove that the finding was based upon false testimony. It certainly was an error or mistake upon the part of the commission, if it was led by the false testimony of a witness to believe, and so find, that the injury sustained by the claimant was not received in the course of his employment. Indus. Comm'n v. Employers' Liab. Assurance Corp., 78 Colo. 267, 241 P. 729 (1925).

Issues on reopening are whether original award in conformity with law and supported by evidence. Where the commission reopens a case on its own motion, sets a date for a hearing, and holds a hearing pursuant thereto, the issues are then the same as those presented in any other action for a review of a decision of the commission, namely, whether the award was entered in conformity with the law and supported by competent evidence. Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957).

A subsequent award will affect an earlier award as to moneys already paid only if the claimant is required actually to pay back moneys from the initial award. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo. App. 1997).

Awards which change or modify the effect of the original award must be based upon specific findings supported by competent evidence. Sherratt v. Rocky Mt. Fuel Co., 94 Colo. 269, 30 P.2d 270 (1934).

And if not they cannot be affirmed by the courts. Sherratt v. Rocky Mt. Fuel Co., 94 Colo. 269, 30 P.2d 270 (1934).

For example, a finding that a "mistake in all probability existed in the receipt of testimony at original hearing" does not meet the mandatory requirements of a specific finding of error, mistake, or change of condition justifying the reopening of an award. Md. Cas. Co. v. Kravig, 153 Colo. 282, 385 P.2d 669 (1963).

Sufficiency of commission's reason for change. The finding "that on prior reviews, the commission improperly weighed the evidence", would be a sufficient statement of a conclusion upon which to grant a rehearing, and on such rehearing — if the same conclusion persisted — to change the award, there being a sufficient statement of reasons for the change, but to enter an award upon the simple statement that the evidence had been improperly weighed on prior reviews, and to do so without additional hearings, or evidence, and this upon the heels of consistent contrary findings, establishes with crystal clearness that the prohibited "change of mind" without stated reasons, occurred. Allan v. Gadbois, 100 Colo. 141, 66 P.2d 331 (1937).

Sufficient evidence to justify extended award. Where new evidence is to the effect that claimant's injury is more extensive than had appeared from an earlier inquiry, not that his condition had "become worse", as the commission recited, the import of the finding is that from the beginning claimant's condition justified the extended award. The evidence warranted that determination, and the law authorized it. The procedure was apt. Rocky Mt. Fuel Co. v. Canivez, 96 Colo. 198, 40 P.2d 618 (1935); Moffat Coal Co. v. Podbelsk, 96 Colo. 355, 42 P.2d 1001 (1935); Century Indem. Co. v. Klipfel, 99 Colo. 213, 61 P.2d 842 (1936).

Findings by the hearing officer were supported by substantial evidence and therefore not subject to alteration by the commission. Matter of Death of Corbin, 724 P.2d 677 (Colo. App. 1986).

Effect of change of award on moneys already paid. Where claimant's final receipt for temporary disability was approved "subject to any future claim for disability as provided by law", and upon further hearing, it was determined that claimant was totally and permanently disabled, that such disability was due to the accident, and accordingly he was awarded compensation for his lifetime, it was held that the "moneys already paid" were for temporary disability only, whereas the moneys ordered paid on the subsequent hearing were for permanent disability only; hence the prohibition of this section did not apply. Russell Coal Co. v. Zinge, 112 Colo. 171, 147 P.2d 365 (1944); Moffat Coal Co. v. Giankos, 112 Colo. 585, 152 P.2d 681 (1944).

Where rehearing of change of award allowed. There being no evidence whatever concerning error in the prior award, or any finding pointing out the possibility of such error, it is apparent that plaintiffs, affected by an increased award, had no way of anticipating it; that they were surprised thereby and were entitled to the rehearing for which they petitioned in due time. Nat'l Lumber & Creosoting Co. v. Kelly, 99 Colo. 442, 63 P.2d 457 (1936).

Award on review may be retroactive. This section does not provide that no review shall have a retroactive effect, or that no review shall affect a prior award as to any period for which payment has been made. The only limitation is that no review shall affect "moneys already paid". This limitation precludes the commission from finding that moneys already paid to a claimant under a previous award are not the property of the claimant and must be returned to the insurer. It does not preclude the commission from giving an award on review a retroactive effect so as to require the payment of additional compensation for a period before the previous award was reviewed. Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011 (1947).

To warrant a reopening of a case, it is not necessary to make a showing that a worker's industrial disability has increased because a reopening is also appropriate where additional medical and temporary disability benefits are warranted. Dorman v. B & W Const. Co., 765 P.2d 1033 (Colo. App. 1988).

Neither this section nor § 8-42-107.5 addresses the situation of further temporary total disability benefits being awarded after the limit on combined temporary total and permanent partial benefits has been paid. But in view of underlying policies, in this situation the employer should be entitled to offset any permanent partial disability benefits paid against temporary total disability benefits. Donald B. Murphy Contractors v. Indus. Claim Appeals Office, 916 P.2d 611 (Colo. App. 1995).