W.C. No. 4-247-158Industrial Claim Appeals Office.
August 20, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied his petition to reopen. The claimant contends that the respondents’ admission for permanent partial disability benefits was mistaken because the rating physician changed his mind and opined that the claimant is permanently and totally disabled. We affirm.
The claimant sustained a compensable back injury in January 1995, and subsequently underwent surgical fusion from L3 to the sacrum. On August 1, 1996, Dr. Kindsfater opined the claimant had reached maximum medical improvement (MMI) with a thirty-four percent whole person impairment. In his report, Dr. Kindsfater stated the following:
“I believe that Mr. Fisher can only perform light duty. He is restricted to floor to shoulder lifts of under fifteen pounds and overhead lifts of less than ten pounds. He is to avoid repetitive bending, twisting or squatting or stooping. I think really he is relegated to a sedentary job.”
The respondents filed a final admission of liability on September 19, 1996. The respondents admitted for permanent partial disability benefits based on Dr. Kindsfater’s thirty-four percent whole person rating. The claimant did not file a timely objection to the final admission of liability.
On September 24, 1996, the claimant returned to Dr. Kindsfater for a “routine follow-up.” On that date, Dr. Kindsfater reported the claimant’s condition had “not changed any.” Dr. Kindsfater also stated the following:
“I think he could do sedentary duty but really it would have to be in a noncompetitive environment as he still, even with complete sedentary duty, needs to have continuous position changes and needs to be able to lie down, etc. I don’t think he would be competitive in the employment market and no one is going to hire him I think with his significant symptoms. Because of this, I think it is reasonable to consider permanent complete disability for him, and I will discuss this with our case management people.”
On September 26, 1996, Dr. Kindsfater added an “addendum” to the September 24 note. Dr. Kindsfater reiterated that he didn’t believe the claimant was competitive in the work force, and stated he was “not sure that any kind of retraining will benefit [the claimant] much.” Dr. Kindsfater concluded by stating that “we should probably consider Mr. Fisher to be permanently and completely disabled from competitive and active employment.”
The claimant subsequently filed a petition to reopen based on mistake. The claimant advanced the theory that the claim was mistakenly closed because he was permanently and totally disabled rather than permanently partially disabled. According to the claimant, this mistake was evidenced by the fact that Dr. Kindsfater changed his opinion concerning the claimant’s ability to work.
However, the ALJ denied the petition to reopen and concluded that Dr. Kindsfater’s change of opinion concerning the claimant’s ability to work “is not the type of error or mistake that warrants reopening.” In support, the ALJ noted that whether a person is able to return to work “is actually a question of fact for the trier of fact to determine based upon all the evidence.” Moreover, the ALJ noted that inability to return to work is normally proven by way of the claimant’s testimony, medical records, and the opinions of vocational experts.
Citing Standard Metals Corp. v. Gallegos, 781 P.2d 142
(Colo.App. 1989), the claimant argues that Dr. Kindsfater’s change of opinion concerning ability to work constitutes a mistake of fact for purposes of § 8-43-303(1), C.R.S. 1997. Thus, the claimant asserts that the ALJ erroneously denied the petition to reopen. We disagree.
A claim may be reopened based on mistake whenever subsequent evidence casts doubt upon the validity of a factual determination which formed the basis of an award or denial of benefits. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177
(Colo.App. 1996); Standard Metals Corp. v. Gallegos, supra. However, the ALJ has wide discretion to determine whether a mistake has occurred, and if so, whether it is the type of mistake which justifies reopening. Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399 (Colo.App. 1981). When determining whether a particular mistake justifies reopening, the ALJ may consider whether it is the type of mistake which could have been avoided by the timely exercise of available remedies. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967) Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984).
Because the ALJ’s authority to reopen is permissive, we may not interfere with his decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra. Generally, an abuse is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or unsupported by the evidence. See Coates, Reid and Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Further, we must uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ was not required to conclude that the statements issued by Dr. Kindsfater on September 24, and September 26, 1996, necessarily prove that there was a “mistake of fact” concerning whether or not the claimant is permanently and partially disabled or permanently and totally disabled. As the ALJ recognized, Dr. Kindsfater did not change the claimant’s restrictions first issued on August 1, 1996, nor did he opine that there had been any change in the claimant’s overall condition. If anything, Dr. Kindsfater merely changed his opinion concerning the probable consequences of those restrictions on the claimant’s ability to obtain employment on the open labor market. The ALJ could logically find that this change of opinion, which largely concerned vocational rather than medical issues, did not amount to a mistake of fact.
Further, the record supports the ALJ’s determination that, if there was a mistake of fact, it was not the type of mistake which warrants reopening. As the respondents point out, Dr. Kindsfater’s September 24 and September 26 reports were issued long before the claim was closed due to the claimant’s failure to object to the final admission. In fact, the respondents’ final admission was issued on September 19, 1996, and the claimant could have objected and requested a hearing on the issue of permanent total disability. Section 8-43-203(2)(b), C.R.S. 1997. Because the claimant might have avoided the necessity of filing a petition to reopen had he timely objected to the final admission and presented Dr. Kindsfater’s September reports, the ALJ did not abuse his discretion in concluding that the alleged mistake is not the type which justifies reopening.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 20, 1998 to the following parties:
John Michael Fisher, 3802 Dall Place, Ft. Collins, CO 80525
Wal-Mart Stores, Inc., P.O. Box 116, Bentonville, AR 85064
Claims Management, Inc., 3901 Adams Rd., Ste. C, Bartlesville, OK 74006-8458
Richard A. Bovarnick, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondents)
Jan A. Larsen, Esq., 375 E. Horsetooth Rd., Bldg. 6, Ste. 200, Ft. Collins, CO 80525 (For the Claimant)
By: _______________________