dissenting.
I respectfully dissent.
On August 12, 1988, employer and its insurer, State Compensation Insurance Authority, received a medical report from Dr. Da Silva, claimant’s treating physician, dated July 12,1988. A copy of this report was not forwarded to either claimant or his attorney. Claimant’s attorney first learned of Dr. Da Silva’s report during a workers’ compensation hearing on January 10, 1989. Prior to that time, respondent had indicated that it had no new medical reports.
Claimant filed his petition to reopen his claim on November 25, 1988. Under Colo. Sess.Laws 1988, ch. 50, § 8-53-113 at 387, a petition to reopen must be filed within two years of the last disability payment. Because the last disability payment was September 10, 1986, the last time for claimant to file to reopen for additional disability benefits because of a worsening condition was September 10, 1988.
At the January 10, 1989, hearing the Administrative Law Judge (AU), upon learning of the report and its transmittal date, stated:
“As far as I am concerned this [July 12, 1988 Da Silva] report establishes a worsening of condition and had [claimant and counsel] had possession of this report and had it been attached to the petition to reopen the claim you would have satisfied the jurisdictional requirement of the petition ... there is no explanation to me why this was not provided to you as required by the Rules. As far as I am concerned this constitutes a worsening of condition. This constitutes compliance with the Rule if it would have been attached to the petition to reopen the claim. Certainly, it was available a long time before the petition to reopen the claim was filed in this matter.”
*982At the same hearing, the ALJ stated that because of claimant’s worsening condition he was entitled to temporary total disability benefits.
Apparently in response to a communication from the employer/insurance company after the January 10, 1989, hearing, the AU, in his written order of March 16, 1989, determined that the time for reopening the disability benefits part of the case had expired and that, therefore, the November 25, 1988, petition was untimely and thus was denied. The decision of the AU was affirmed by the Panel on October 2, 1989.
I would set aside the Panel’s order. The rules which govern workers’ compensation proceedings are explicit in requiring that each party promptly provide a copy of any pertinent medical report to the other parties and the division. Department of Labor & Employment Rule XI(M), 7 Code Colo. Reg. 1101-03. Here, the AU found that employer’s failure to do so was without justification. Therefore, it violated the rules and regulations of the Industrial Claim Appeals Office.
The majority indicates that the employer was not obligated to provide Dr. Da Silva’s report to claimant because the employer was no longer obligated to pay medical benefits. Department of Labor & Employment Rule XI(M) states that each party shall exchange with all counsel of record as well as filing with the Division of Labor a copy of each medical report which contains a narrative history or any other information germane to the past, present, or future condition of the claimant.
Clearly this rule does not, as suggested by the majority, limit the responsibility of an employer to provide copies of medical information because the claimant no longer has the right to medical benefit payments.
In my view, claimant did have a justified expectation of receiving this report from claimant. First, the plain language of the rule required the employer to provide it to claimant. Second, the report contained medical information which pertained both to claimant’s present medical situation (including treatment) and to his right to reopen his claim and receive additional compensation because of a worsening medical condition. In my opinion, there is a continuing duty imposed upon parties to provide such pertinent information and a claimant has a right to rely on the employer’s fulfillment of its responsibilities under the Workers’ Compensation Act.
The AU initially stated that the contents of the report justified both a reopening and an award of disability benefits. The record is also clear that the employer and its insurer had the report from Dr. Da Silva substantially before the September 10, 1988, deadline, and had it been properly forwarded to claimant, he would have been in a position to have filed the petition to reopen with an attached report.
Claimant argues that the failure to provide this report and its resulting prejudice to him should toll the statute of limitations. In my view, such contention raises an important question of first impression in Colorado.
As noted above, under Department of Labor & Employment Rule XI(M), there is an explicit obligation for the parties to disclose and provide a medical report which deals with claimant’s condition. Under such circumstances, the failure to follow this legal requirement can result in a tolling of the time period for reopening the statute. 3 A. Larson, Workmen’s Compensation Law, § 81.24(a) (1989).
Moreover, if there has been a fraudulent or willful concealment of such information, the statute is also tolled. 3 A. Larson, Workmen’s Compensation Law § 81.24 (1989); see Priest v. Exposition Cotton Mills, 86 Ga.App. 301, 71 S.E.2d 743 (1952).
Here, within the two-year period permitted for reopening a disability claim because of a worsening condition, the employer/insurer received an updated medical report from a physician who had recently examined claimant. The medical report indicated the worsening of claimant’s position and the employer/insurer, in violation of the Department of Labor & Employment rules, failed to provide the report to claimant in a timely manner. In my opinion, this *983set of circumstances extends, as a matter of law, the time for claimant to reopen until he received the report.
The majority argues, however, that claimant failed to prove he was prejudiced by not receiving the report or, since medical benefits were no longer owing, he had no right to rely on the employer to provide the report. I believe the relevant facts here are undisputed, and we can determine as a matter of law that claimant is entitled to reopen his claim. However, if claimant has, as the majority argues, failed to make an adequate showing of prejudice or reliance on the employer’s failure to provide a report, it is because the circumstances here have effectively precluded him from doing so.
The claimant did not receive Dr. Da Silva’s report until the hearing on his petition to reopen. At that hearing, when the ALJ learned of the report and its date, he strongly indicated that he would rule in favor of claimant’s petition to reopen because of the report’s contents and the employer’s failure timely to provide it to claimant.
Under these circumstances, there was neither opportunity nor reason for claimant to present evidence upon these issues. Nevertheless, if the majority is concerned about the actual prejudice to claimant from not receiving the report earlier, rather than claiming a failure of proof by him, this matter should be remanded for an eviden-tiary hearing and a determination by the AU on the issue of prejudice and reliance.
Employer concedes that it may be necessary to toll a claimant’s time for filing to reopen if an employer fails to provide medical reports when it is required to do so under the rules. However, here, employer argues that the information in the July 12, 1988, report is not significant and is similar to information contained in an earlier medical report which claimant had. Therefore, employer argues that, as a matter of law, the information in the July 12, 1988, report would not have caused claimant to file his reopening petition in a timely manner and, thus, that there is no prejudice to him by virtue of his non-receipt of the report.
I do not agree with employer that the facts here dictate a determination, as a matter of law, that the information in the report would not have caused claimant’s counsel to file his petition to reopen in a timely manner. Indeed, the AU’s initial determination of the significance of this report as to both reopening and increased disability refutes employer’s contentions.
To the contrary, I believe that the facts establish claimant’s right to reopen the claim. If, however, as the majority claims, the evidence is insufficient to establish prejudice or detrimental reliance, the case should be remanded to the AU for an evidentiary hearing on this issue.