Monday, April 15, 2013
Last week the Court of Appeals decided the Youngs case. The case is as complicated as it is long. It started in 2005. In 2011 the claimant sought to reopen the case. Reopening was sought on two grounds. One ground was fraud and the second was a worsening of the claimants condition. The insurer opposed both allegations. On the fraud assertion that was dismissed by one judge after deciding the claimant could not establish the elements to support the request to reopen. Later a hearing was held on reopening based upon a worsening of the claimants condition. On the evidence another judge decided against reopening. The claimant appealed both orders. The court decided against the claimant. On the fraud dismissal the claimant filed to appeal but it was determined to be premature until the second order was issued and while claimant appealed the second order he did not appeal the fraud dismissal after the second order making it untimely. On the worsening appeal it was decided there was no worsening and no error permitting that decision to be overturned. You are encouraged to read the case for a full review of the courts opinion. The decision on no worsening is straightforward enough to read and understand. Perhaps I might not agree but the burden is on the claimant and a judge has discretion with respect to the evidence. But on the fraud issue we seem to have a decision which says the early appeal by the claimant was too early and he needed to appeal again on that issue and when he did not then he lost his right to appeal. Now for my personal comments: I do question that the first appeal was premature. It seems rather final to dismiss the fraud allegation and a final decision starts the time frame to appeal. The claimant did appeal in a timely way but the court clearly felt otherwise. But next the court seems to impose a requirement that the claimant had to appeal a second time on the fraud issue after the last hearing and order. Perhaps that is the case but it is rather clear the claimant did initially appeal so does that existing filed appeal become timely after the second order? It is not like it was ever ruled upon until much later. Of course I am aware and the reader should be aware that the court had its own reasoning which is the law unless this case is appealed to the Colorado Supreme Court. Even if appealed that court can choose not to address the present decision.