City and County of Denver v. ICAO

SUMMARY December 2, 2021 2021COA146 No. 21CA0275, City and County of D enver v. ICAO — Labor and Industry — Workers’ Compensat ion — Review Procedures — Reopening In this workers’ compensation cas e, a division of the court of appeals considers whether the r eopening statute, section 8-43-303, C.R.S. 2021, which limits the grou nds on which an award may be reopened, constrains the authority of the Director of the Division of Workers’ Compensation to reopen an award that had been closed automatically for failure to pros ecute. The division concludes that it does. The division therefore concludes th at the Director’s order reopening a claimant’s award, aft er the claimant received initial benefits but failed to prosecute his claim seeking additional The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. benefits, was proper only if the cla imant satisfied the criteria in the reopening statute for reopening th e award. Because the Director, the administrative law judge (ALJ), and the Industrial Claim Appeals Office (Panel) never consid ered whether claimant satisfied those statutory criteria, the divisio n sets aside the Panel’s order and remands the case to the Panel wit h directions to return it to the Director or the ALJ for additional findings. COLORADO COURT OF APPEALS 2021COA146 Court of Appeals No. 21CA0275 Industrial Claim Appeals Office of the State of Colorado WC No. 5-039-180 City and County of Denver, Colorado, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado and Andrew Sipres, Respondents. ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS Division V Opinion by JUDGE GOMEZ Richman and Harris, JJ., concur Announced December 2, 2021 Kristin M. Bronson, City Attorney, Stephen J. Abbott, Assistant City Attorney, John P. Moon, Assistant City Attorney, Denver, Colorado, for Petitioner No Appearance for Respondent Industrial Claim Appeals Office Law Office of O’Toole and Sbarbaro, P.C., Neil D. O’Toole, Denver, Colorado, for Respondent Andrew Sipres 1 ¶ 1 In this workers’ compensation cas e, we are asked to determine whether the reopening statute, s ection 8-43-303, C.R.S. 2021, which limits the grounds on which an award may be reopened, constrains the authority of the Dir ector of the Division of Workers’ Compensation (the Division) to r eopen an award that has been automatically closed for failure to prosecute. We conclude that it does. ¶ 2 The award at issue was closed aut omatically when claimant, Andrew Sipres, after receiving some in itial benefits, failed to respond to an order to show caus e why his claim seeking additional benefits shouldn’t be dismissed for failure to prosecute. The Director later granted claimant ad ditional time to respond to the show cause order, effectively settin g aside the automatic closure of the award. An administrative law judge (ALJ) and the Industrial Claim Appeals Office (Panel) uphel d the Director’s action. ¶ 3 We conclude that the Director’s act ion reopening the award was subject to the reopening stat ute. Because the Director, the ALJ, and the Panel never considered w hether claimant satisfied the reopening criteria set forth in that statute, we set aside the Panel’s 2 order and remand the case to th e Panel with directions to return it to the Director or the ALJ for additi onal findings. I. Background ¶ 4 In 2017, claimant, a deputy sh eriff for the City and County of Denver, was injured at the courtho use where he worked while remanding a defendant into custo dy. After the defendant became belligerent and punched claimant’ s colleague, claimant “tried to gain custody” of the defendant, w restling the defendant to a table and then to the ground. When clai mant landed on the ground, his left shoulder “kind of popped.” He was diagnosed with a posterior labral tear, for which he underwe nt surgery. ¶ 5 After post-surgical treatment and physical therapy, claimant’s authorized treating physician placed h im at maximum medical improvement, with a 6% scheduled impairment of the left upper extremity. Claimant disagreed wit h the rating and requested a division-sponsored independent m edical examination (DIME). The DIME physician increased his per manent impairment rating to a 16% scheduled impairment of the left upper extremity, which could be converted to an impairment rat ing of 10% of the whole person. In June 2018, the City filed a final admission of liability (FAL) based 3 on the DIME physician’s findings, admitting to a scheduled impairment of 16% of the left upp er extremity. ¶ 6 Claimant later filed two applications for hearing, seeking to convert the admitted scheduled im pairment into a whole person impairment rating, which would entitle him to increased benefits. But claimant failed to take the acti ons necessary to set the matter for a hearing. See Off. of Admin. C ts. Rule 8(I), 1 Code Colo. Regs. 104-3 (procedures for setting a ma tter for a hearing). ¶ 7 In June 2019, after six months had pa ssed since claimant had taken any action on his claim, th e City filed a motion to close the claim for failure to prosecute. On July 1, 2019, the Director issued an order to show cause requesting that claimant inform the Division and the City in writin g “what recent effort [he] ha[d] made or [was] making to pursue [his] clai m.” The order advised that the “claim will be automatically clos ed” if he failed to respond within thirty days, after which he could “ petition to reopen [the] claim, subject to the provisions of [section ] 8-43-303.” ¶ 8 Claimant and his counsel’s offic e received copies of both the motion and the order to show caus e. But because neither claimant 4 nor his counsel submitted a timely response, the claim was closed automatically as of August 1, 2019. ¶ 9 A few weeks later, claimant filed an other application for hearing, again seeking conversion to a whole person impairment rating. In response, counsel for the City advised claimant’s counsel that the claim had been closed. Claimant moved for reconsideration, indicating that nei ther the City’s motion nor the order to show cause was in his co unsel’s file. He asked the Division to set aside the show cause order and set the requested hearing. ¶ 10 Claimant later supplemented his m otion with additionally discovered information, including t hat  claimant’s counsel believed the mo tion and order to show cause were “purposely not placed i n the file by legal assistant S.W., who no longer works for counsel”;  upon further investigation, couns el had “found that the Claimant personally received” both documents and “called S.W. at counsel’s office mul tiple times and was assured by S.W. that this matt er would be handled”;  S.W. “never informed” counsel ab out the pending motion; and 5  “in light of [S.W.’s] conversation wit h the Claimant, it [wa]s clear that she knew that such Motion was filed and purposely, perhaps maliciously, fa iled to provide counsel with information which would hav e enabled him to respond to both the Motion and th e Order.” ¶ 11 In October 2019, the Director iss ued an order extending the time within which claimant coul d show cause why his claim should not be dismissed for failure to pros ecute. The Director noted that claimant had “requested that the O rder to Show Cause be set aside” and had “represented that ther e is a need for an extension of time to show cause why this claim shoul d not be closed.” The Director then ordered that the claim could be closed unless a hearing was held on it within 120 days. ¶ 12 Claimant set the matter for a h earing, at which the ALJ considered three issues: (1) the Cit y’s contention that the Director exceeded his authority by extendi ng the deadline to respond to the show cause order, thus effectively r eopening the award after it had been closed; (2) claimant’s request to convert his impairment rating from a scheduled impairment of the upper extremity to a whole 6 person rating; and (3) claimant’s r equest for permanent partial disability (PPD) benefits. ¶ 13 As to the first issue, the ALJ found that the Director’s October 2019 order “was a modification of the prior Order to Show Cause,” which fell within the Director’s stat utory authority to modify orders, grant extensions of time, close clai ms, and otherwise manage claims. Because he concluded that the reopening statute didn’t govern the Director’s action, the A LJ didn’t address the application of the statute, except to note that the case on which the City chiefly relied in its argument on that poi nt, Klosterman v. Indus. Comm ’n , 694 P.2d 873 (Colo. App. 1984), w as distinguishable. ¶ 14 Then, as to the second and third is sues, the ALJ ordered claimant’s impairment rating conv erted to 10% of the whole person and awarded him additional PPD b enefits based on that rating. ¶ 15 The City petitioned for review by t he Panel only as to the first issue resolved by the ALJ — wh ether the Director had authority to effectively reopen the award. Th e City did not raise to the Panel, or to this court, any arguments conc erning issues two or three. The Panel upheld the ALJ’s order, stat ing that “[i]n [its] view, the closure effectuated by the Director’s show cause order may be reopened 7 either by proving the factors in [s ection] 8-43-303 . . . or when the Director simply invokes his discr etion and revokes or amends his show cause order.” Thus, finding r easonable the ALJ’s conclusion that the Director acted within his discretionary authority, the Panel didn’t consider whether the statut ory criteria were satisfied. ¶ 16 The City now appeals. II. Analysis A. Review Standards ¶ 17 When we interpret a statutory prov ision, if its language is clear “we interpret [it] according to its pl ain and ordinary meaning.” Davison v. Indus. Claim Appea ls Off. , 84 P.3d 1023, 1029 (Colo. 2004). In addition, “when examini ng a statute’s language, we give effect to every word and render n one superfluous because we ‘do not presume that the legislatur e used language idly and with no intent that meaning should be gi ven to its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 187 P.3d 565, 571 (Colo. 2008) (quoting Colo. Water Conservat ion Bd. v. Upper Gunnison River Water Conservancy Dist. , 109 P.3 d 585, 597 (Colo. 2005)). ¶ 18 We review matters of statutory con struction de novo. Ray v. Indus. Claim Appeals Off. , 124 P.3 d 891, 893 (Colo. App. 2005), 8 aff’d , 145 P.3d 661 (Colo. 2006). Although we will defer to the Panel’s reasonable interpretation o f the statute it administers, we are not bound by it. SkyWest Airlines, Inc. v. Indus. Claim Appea ls Off. , 2020 COA 131, ¶ 32 . “The Pa nel’s interpretation will . . . be set aside ‘if it is inconsistent with t he clear language of the statute or with the legislative intent.’” Ba um v. Indus. Claim Appeals Off. , 2019 COA 94, ¶ 36 (quoting Tow n of Castle Rock v. Indus. Claim Appeals Off. , 2013 COA 109, ¶ 11 ). B. Statutory Provisions ¶ 19 This case exposes a tension in t he Workers’ Compensation Act (Act) between the Director’s discr etionary authority to manage claims and the legislature’s statut ory mandate governing the reopening of closed awards. ¶ 20 On the one hand, the Act grants t he Director discretionary authority to manage claims. For instance, the Act empowers the Director “to appoint claims manage rs to review, audit, and close cases, . . . to promote speedy and unc omplicated problem resolution of workers’ compensation matters, and to otherwise manage claims .” § 8-43-218(1), C.R.S. 202 1 (emphasis added). Also, the Act authorizes the Director and AL Js, as part of their discretion to 9 oversee hearings, to “[d]ispose of p rocedural requests upon written motion”; “grant reasonable exten sions of time for the taking of any action” upon a written request and showing of good cause; and “[d]ismiss . . . issues in [a] case . . . , upon thirty days notice to all the parties, for failure to prosecut e the case [if there has been no activity for at least six months] unless good cause is shown why such issues should not be dismiss ed.” § 8-43-207(1)(g), (i), (n), C.R.S. 2021. The ALJ and the Pan el cited these provisions in ruling that the Director acted within his discretionary authority. ¶ 21 But, on the other hand, as the City points out, the legislature has placed limits on reopening awa rds under the Act. Specifically, the reopening statute provides, in relevant part, that [a]t any time within six years aft er the date of injury, the director or an [ALJ] ma y , after notice to all parties, review and reo pen any award on the ground of fraud, an overpayment, an error, a mistak e, or a change in condition . . . . § 8-43-303(1) (emphases added). ¶ 22 The City contends that this section limits the Director’s authority in managing claims onc e an award has been closed, even if the closure is automatic upon fai ling to respond to a show cause 10 order. The City argues that the Dir ector cannot extend deadlines or take other actions on a closed awa rd unless the statutory criteria for reopening are met. It notes, t oo, that while sections 8-43-207(1) and -218(1) grant the Director aut hority to manage active claims, neither provision expressly exten ds that authority to closed claims. C. Applicability of the Reopening Stat ute ¶ 23 Our resolution of these potentially conflicting statutory provisions requires us to answer t wo questions. First, does the reopening statute apply to an awar d that has been automatically closed for failure to prosecute? An d second, if so, does it constrain the Director’s authority to reopen s uch an award, despite the Director’s otherwise broad discr etionary powers under the Act? W e answer both questions in the affir mative. ¶ 24 As to the first question, another s ection of the Act, which provides for the closure of issues a dmitted in an FAL if the claimant doesn’t contest the FAL and reques t a hearing within thirty days, expressly states that the closure is subject to the reopening statute. § 8-43-203(2)(d), C.R.S. 2021. But section 8-43-207(1)(n), which governs dismissals for failure to pros ecute, doesn’t reference the 11 reopening statute. Instead, it is silent concerning when and how any issues so dismissed may be r eopened. ¶ 25 The reopening statute, however, is broadly written. By its plain language, it applies to the reo pening of “any award.” § 8-43-303(1). And “award” has been interpreted broadly under th e Act to include “[a]n order, wheth er resulting from an admission, [an] agreement, or a contested hearing, which addresses benefits and which grants or denies a benefit.” Bolton v. Indus. Claim Appea ls Off. , 2019 COA 47, ¶ 23 (quoting Burke v. Indus. Claim Appeals Off. , 905 P.2d 1, 2 (Colo. App. 1994)); see also Safeway, Inc. v. Indus. Claim Appeals Off. , 968 P.2d 162 , 1 64 (Colo. App. 1998) (“An order resulting from an admission which addresses the granting or denial of a particular benefit is an award which must be reopened if additional or different benefits are sought.”); Brown & Root, Inc. v. Indus. Claim Appeals Off. , 833 P.2 d 780, 783 (Colo. App. 1991) (“[A]n order, whether resulting fr om an admission, an agreement, or a contested hearing, which addr esses each of the three types of benefits (medical, temporary disabi lity, and permanent disability) and which grants or denies each t ype of benefits, constitutes an ‘award.’ Thus, after such an awar d becomes final by the 12 exhaustion of, or the failure to exh aust, review proceedings, no further proceedings to increase or decrease any such benefits beyond those granted by the order are authorized, unless there is an appropriate further order ent ered directing that those proceedings be reopened.”) (citatio n omitted). ¶ 26 We conclude that the language in t he reopening statute is broad enough to encompass claim ant’s award, which granted benefits pursuant to the FAL and w hich became final when the claim was closed for failure to pros ecute. Indeed, in a similar case, a division of this court held that a claimant’s receipt of temporary disability benefits based on the employ er’s FAL constituted an “award” subject to the reopening statute, even though the claim had been closed for failure to prosecut e when the claimant failed to attend a hearing he had requested . Burke , 905 P.2d at 2 . Thus, when the claimant later sought ad ditional benefits due to the worsening of his condition, the div ision held that the award could be reopened if he satisfied the crit eria in the reopening statute. I d. ¶ 27 Likewise, here, claimant received PPD benefits based on the City’s FAL. That receipt of benefit s constituted an “award,” which became final when the claim was closed for failure to prosecute and 13 timely respond to the Director’s sh ow cause order. And once the award had been closed, claimant could pursue further benefits only if he satisfied the criteria in the r eopening statute. See Safeway , 968 P.2d at 164 ; Burke , 905 P.2d at 2 ; Brown & Root , 833 P.2d at 783. ¶ 28 The Division’s regulations implem enting the Act and its actions in this case support this interpretation. As to the regulations, Rule 7-1(C)(3) expressl y states that a closure for failure to prosecute is subject to the provis ions of the reopening statute: Following receipt of a request to clo se a claim, the Director may issue the order t o show cause why the claim should not be clos ed. If no response is mailed or delivered wit hin 30 days of the date the order was mailed, t he claim shall be closed automatically, s ubject to the reopening provisions of § 8-43-303, C.R.S. Dep’t of Lab. & Emp. Rule 7-1(C)(3 ), 7 Code Colo. Regs. 1101-3 (emphasis added). Similarly, the show cause order issued in this case provided that if claimant didn’t respond in thirty days, the claim would automatically be clo sed and claimant thereafter could “petition to reopen [the] claim, s ubject to the provisions of [section] 8-43-303.” Clearly, then, when th e Division adopted its rule and when the Director issued his show cause order, they anticipated 14 that a claim that had been automa tically closed for failure to prosecute could be reopened only u nder the reopening statute. ¶ 29 Turning to the second question, w e disagree with the ALJ and the Panel that the Director’s discr etionary authority somehow overrides the reopening statute’s r estrictions on opening closed awards. Although the Director has broad discretion to, among other things, “manage claims” und er section 8-43-218(1) and “[d]ispose of procedural requests” and “grant reasonable extensions of time” under section 8-43-207( 1)(g) and (i), none of these provisions expressly grants the Dir ector authority to take action on a closed award. ¶ 30 The only reasonable way to reconci le these potentially conflicting provisions, while giving meaning to both, is to recognize that the Director and ALJs have broad discretionary authority over open claims, but that once an awa rd has been closed, their discretion is constrained by th e reopening statute. Because the reopening statute is the more speci fic statute when it comes to procedures governing closed awar ds, it governs over the general provisions in sections 8-43-218(1) and 8-43-207(1). See § 2-4-205, C.R.S. 2021 (a specific provision prevails over a general one absent 15 manifest legislative intent to th e contrary); see also In re Estat e of Gallegos , 2021 COA 115, ¶ 14 (“‘ Interpreting a specific provision as prevailing over a general one still a llows for both provisions to exist,’ an approach that is consist ent with the goal of giving full and sensible effect to the entire statutor y scheme.”) (citations omitted). ¶ 31 Indeed, in other contexts, courts h ave recognized that the reopening statute constrains th e authority of the Director and ALJs. See, e.g. , Padilla v. Indus. Comm ’n , 696 P.2d 273, 278 (Colo. 1985) (recognizing, under the predecess or to the reopening statute, that “[a]bsent fraud or clear abuse of di scretion, the Director’s discretion [to reopen a case] is absolute, ass uming the presence of one or more of the requisite factors and the ex ercise of that discretion within the applicable time period”) (emphasi s added), superseded by statut e , Ch. 77, sec. 2, § 8-53-105, 1985 C olo. Sess. Laws 355; Lewis v. Sci . Supply Co. , 897 P.2d 905, 907-08 (Colo. App. 1995) (determining that an ALJ doesn’t have inher ent authority to remedy a fraud in a closed award by ordering the r epayment of fraudulently obtained benefits, but is limited to the proc edures and remedies provided in the reopening statute). 16 ¶ 32 So, too, does the reopening statut e constrain the Director’s ability to issue procedural orders that have the effect of reopening a closed award. Accordingly, the Dir ector couldn’t belatedly extend the show cause deadline, reopen the award, and grant additional benefits unless claimant satisfied t he criteria in the reopening statute. D. Application of the Reopening St atute ¶ 33 Having determined that the Direct or’s action was subject to the reopening statute, we now con sider whether claimant satisfied the criteria in that statute. As th e City points out, this is not a case of fraud, overpayment, or chang e in condition. See § 8-43-303(1). But the reopening statute also p ermits reopening on grounds of error or mistake. Id. The City ar gues that claimant didn’t satisfy either of those two reopening gro unds. We conclude, however, that we cannot resolve this issue on th e record before us. ¶ 34 The Director or the ALJ, when pr esented with a request to reopen, “has broad discretionary a uthority to determine if a claimant has met [their] burden of proof in support of reopening.” Justiniano v. Indus. Claim Ap peals Off. , 2016 COA 83, ¶ 9 . The authority to reopen an award is p ermissive, and the decision 17 whether to grant such relief when t he statutory criteria have been satisfied is a matter left to the soun d discretion of the Director or the ALJ. See id. ¶ 35 But the Director’s order extending t he show cause deadline and effectively reopening the awar d didn’t consider whether the statutory criteria were satisfied or whether, based on those criteria, reopening was warranted. Instead, apparently assuming his actions were within his ordinary discretionary authority, the Director addressed only whether cl aimant’s filings demonstrated good cause to grant an extension of time. Likewise, because they concluded the Director had discreti onary authority to reopen the claim without resort to the reopeni ng statute, neither the ALJ nor the Panel considered the criteria in the statute. ¶ 36 Therefore, neither the Director’s or der nor the decisions of the ALJ and the Panel reviewing that order include any findings as to whether reopening is warranted ba sed on an error or mistake. The City contends that under these cir cumstances the Director’s order is insufficient because it doesn’t ar ticulate a lawful basis for reopening. With that contention w e agree. 18 ¶ 37 The City also contends, though, t hat we should determine, as a matter of law, that claimant fail ed to establish sufficient grounds for reopening. The City cites prior decisions that have applied the term “mistake” in circumstances in volving mistakes of fact, like misdiagnoses, see, e.g. , Berg v. I ndus. Claim Appeals Off. , 128 P.3 d 270, 273 (Colo. App. 2005), or mist akes of law, like decisions that are inconsistent with later judicial interpretations, see, e.g. , Renz v. Larimer Cnty. Sch. Dist. Poudre R-1 , 924 P.2d 1177, 1180-81 (Colo. App. 1996). But those decisions don’t state that the term “mistak e” is limited to those particular circ umstances, nor do they elucidate what might constitute an “error” ju stifying reopening. ¶ 38 The City also points to Klost erman , in which a division of this court recognized, under the pred ecessor to the reopening statute, that excusable neglect is not listed among the grounds for reopening an award. 694 P.2d at 875 . The City maintains that t he actions of claimant’s counsel’s offi ce may suggest neglect — perhaps even excusable neglect — but that excusable neglect cannot constitute an “error” or “mi stake.” ¶ 39 But the City reads too much into the Kl osterman decision. In that case, Klosterman sought to r eopen a prior determination that 19 he was individually liable as an em ployer of the claimant, explaining that his failure to app ear at the hearing where that issu e was resolved was “inadvertent,” resulting in part from his reliance on advice from an attorney and his lack of receipt of some of the notices. Id. at 874-75. The hearin g officer who considered his request found no basis for reopeni ng and denied the request. I d. at 875. On appeal, Klosterman arg ued that reopening was warranted due to excusable neglect, analogizi ng to the provisions of C.R.C.P. 60(b)(1) for setting aside a judgm ent. Id. The division disagreed, reasoning that “[t]he statute specifi cally enumerates the grounds upon which the director may reo pen an award” and “[e]xcusable neglect is not included among tho se grounds.” Id. It added that “while considerations constituting mist ake or error and excusable neglect may sometimes overlap, w e do not consider them to be synonymous.” Id. at 876. ¶ 40 Ultimately, the division relied on t he fact that, irrespective of whether Klosterman’s conduct mig ht be considered excusable neglect, the Industrial Commissio n had determined that it wasn’t an error or mistake that warranted reopening: 20 Under the [Act], the director of th e Division of Labor and the Industrial Commis sion have the authority and discretion to determi ne whether an error or mistake has been made an d if so whether it is the type of error or mi stake which warrants a reopening. It is appar ent here that the Commission did not consider Klosterman’s inaction after he obtained counsel, including his failure to apprise the Division of a change of address, or at any time of an ad dress for the registered agent of the corporate entity, to be the type of mistake which would entitle him to a reopening. We perceive no ab use of discretion in this determination an d, hence, may not disturb it on review. Id. (citation omitted). ¶ 41 Here, however, the Director (and t he ALJ and Panel on review) didn’t consider whether claimant had established an error or mistake that warranted reopening. The ALJ did indicate that Klosterman was factually distinguishabl e, citing claimant’s timeliness in filing his first two h earing requests, the City’s notice that the issue of PPD was disputed, and the lack of any prejudice to the City. But because the ALJ (lik e the Director and the Panel) assumed the reopening statut e didn’t apply, the ALJ didn’t actually resolve the question of whether clai mant had established an error or mistake that warranted reop ening. 21 ¶ 42 We also are not persuaded by th e City’s reliance on Goodman Associates, LLC v. WP Mountai n Properties, LLC , 222 P.3d 310 (Colo. 2010). In that case, the suprem e court reviewed a trial court order setting aside a default judgment u nder C.R.C.P. 60(b)(1), which permits a court to set aside a judg ment on the basis of mistake, inadvertence, surprise, or excusa ble neglect. Id. at 315; see als o C.R.C.P. 60(b)(1). In that context, the court distinguished the terms “mistake” and “excusable neglect,” concluding that the basis on which the defendant sought relief — a failure to attend to the documents on his desk — was a m atter of “neglect,” not “mistake.” Goodman Assocs. , 222 P.3d at 318 -19. It then went on to conclude that the circumstances couldn’t su pport a finding that the neglect was excusable. Id. at 319-23. ¶ 43 We are not prepared to conclude, as a matter of law, that the facts of this case cannot support a finding of error or mistake. The City hasn’t offered a definition of “error” or explained why the Director couldn’t conclude that reopening was warranted on that basis. It’s also not entirely clear that “mistake” has the same meaning in the reopening statut e as in Rule 60(b)(1). After all, Rul e 60(b)(1) includes the terms “inadve rtence,” “surprise,” and 22 “excusable neglect” along with “mistake” as bases for ordering relief from a judgment, thus suggesting that, in that context, each term means something different. See Lom bard , 187 P.3d at 571 (in statutory construction, “we giv e effect to every word and render none superfluous”). The same isn’t true of the reopening statute. ¶ 44 And, ultimately, we will defer to th e Panel’s interpretation of these provisions if it is reasonabl e, see SkyWest Airlines , ¶ 32, and we recognize that the decision wh ether to reopen an award is withi n the discretion of the Director or t he ALJ presented with the request , see Justiniano , ¶ 9. Thus, this is a question that should in the first instance be directed to the Direct or or the ALJ. ¶ 45 We therefore conclude that the mat ter must be remanded to the Director or the ALJ to determin e whether claimant established grounds for reopening under th e reopening statute. III. Conclusion ¶ 46 The order is set aside and the cas e is remanded to the Panel with directions to return it to the D irector or the ALJ for additional findings to determine whether clai mant established a basis for reopening the award. JUDGE RICHMAN and JUDGE HA RRIS concur.