W.C. No. 4-156-147.Industrial Claim Appeals Office.
December 15, 2005.
FINAL ORDER
The claimant seeks review of an order dated July 27, 2005, of Administrative Law Judge Klein (ALJ) that denied and dismissed her petition to reopen on the ground of fraud. We affirm.
This case has a complex history. Significant portions of that history are summarized in our final order dated May 20, 2003, the subsequent opinion of the Court of Appeals dated July 1, 2004, and in our order of remand dated May 3, 2005, and we incorporate that history here.
The present appeal involves a petition to reopen submitted to the ALJ on the ground of fraud. The claimant requests that the Division-sponsored independent medical examination (DIME) physician’s opinion be invalidated and that penalties be awarded against the respondents as a result of alleged misconduct associated with the DIME evaluation.
The claimant suffered an admitted industrial injury to her knee on December 3, 2002. During the course of undergoing surgery on her knee the claimant experienced a “wet tap” in the administration of an epidural injection of anesthetic. The claimant alleges this caused a leakage of her cerebral spinal fluid.
Dr. Macaulay performed an “agreed upon DIME” under the terms of § 8-42-107(8)(B) C.R.S., based upon the mutual agreement of the parties. The DIME physician opined that the claimant probably does not suffer from a chronic cerebral spinal fluid leak.
The claimant alleges that she agreed to the particular physician performing the DIME as a result of the fraud of the respondent’s and/or the fraud of the DIME physician. The opinion of the DIME physician has previously been upheld as binding on the parties by order of the Colorado Court of Appeals entered July 1, 2004. The Court of Appeals pointed out in its Opinion that the respondents filed a notice and proposal to select a DIME physician to determine whether the claimant had reached maximum medical improvement (MMI). The claimant, through her attorney, rejected the three physicians proposed by employer, but suggested three other physicians, one of whom the employer accepted as an “agreed-upon” DIME physician.
The claimant has previously argued that the DIME report was so tainted by allegedly improper conduct by the DIME physician and the respondents that it should be stricken. In our order dated May 3, 2005 we concluded that this issue was not properly before us because it was not timely raised before the ALJ and we could not consider it for the first time on appeal. The claimant’s current petition to reopen reiterates some of the claims previously raised.
The current Petition to Reopen alleges misconduct discovered at a second deposition of the DIME physician. The DIME physician testified that he had talked to Drs. Basse and Hemler about the fact that the claimant had filed grievances against them (Macaulay Depo. 1/14/05 at 115-116). The evidence does not show when these conversations took place. The ALJ found that there was no adequate showing that the DIME physician’s opinion was affected by these conversations, particularly in light of the fact that his opinions have remained that same as when he performed his DIME evaluation in October 2000. The ALJ found that any conversation the DIME physician may have engaged with these two other physicians did not take place in conjunction with the performance of his 2000 DIME evaluation. This report was completed more than four years before he was deposed by the claimant for the second time in January 2005.
The claimant alleged that the attorney for the respondents improperly provided legal documents to the DIME physician prior to his deposition in January 2005. The ALJ found that it did not appear the DIME physician’s testimony was influenced by these legal documents and that his medical opinion was not based upon such legal matters. The ALJ found that even if there was misconduct on the part of respondents in furnishing legal documents to the DIME physician in advance of his January deposition this would not be evidence of fraud.
The ALJ found that the DIME physician treats some patients whose medical benefits are compensated by Pinnacol and he is occasionally called in to consult with their claims managers about claims other than those involving the claimant. The ALJ found that there was no evidence that the DIME physician consulted with Pinnacol or with any attorney or representative of Pinnacol about his medical evaluation of the claimant. The ALJ determined that the claimant did not demonstrate that the DIME physician engaged in any personal or business relationship with the respondents as of the time DIME was performed so as to constitute a fraud. Further the ALJ determined that the claimant was not misled by the DIME physician or by the respondents about his role in the case.
Based on these findings, the ALJ determined that the claimant has failed to show that either the DIME physician or the respondents knowingly misrepresented or concealed the truth of the DIME physician professional role from her or that they otherwise recklessly disregarded the truth or falsity of facts concerning the DIME physician’s role as a medical doctor actively engaged in an occupational medicine practice, within the Colorado workers’ compensation system. In summary the ALJ found that the claimant had failed to show that the DIME physician’s role in the case was fraudulent or that the respondents engaged in fraudulent activity.
On review the claimant alleges numerous violations of the Rule of Procedure XIV (L), 7 Code Colo. Reg. 1101 concerning the conduct of a DIME. The claimant argues that the conversation between the DIME physician and Drs. Basse and Dr. Hemler were likely to have taken place during the actual process of the DIME as the Claimant filed grievances against these physicians prior to the DIME on October 16, 2000.
Generally, the authority to reopen a claim under § 8-43-303(1), C.R.S. 2005, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Fraud may justify reopening an otherwise final award of benefits. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995). The elements of fraud or material misrepresentation are as follows: (1) A false representation of a material existing fact, or a representation as to a material fact with reckless disregard of its truth; or concealment of a material existing fact; (2) Knowledge on the part of one making the representation that it is false; (3) Ignorance on the part of the one to whom the representation is made, or the fact concealed, of the falsity of the representation or the existence of the fact; (4) Making of the representation or concealment of the fact with the intent that it be acted upon; (5) Action based on the representation or concealment resulting in damage Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937).
Where the evidence is subject to more than one interpretation, the existence of fraud is a factual issue for resolution by the ALJ. See Vargo v. Industrial Commission, 626 P.2d 1164
(Colo.App. 1981). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005.
The claimant’s argument notwithstanding, the evidence in this case does not compel a finding that the DIME physician knowingly committed a misrepresentation or concealment of truth to the claimant’s detriment, or that he recklessly disregarded the truth or falsity of a representation to her that was material to the performance of the DIME. The testimony of the DIME physician involving conversations he had with other physicians does not compel a determination that the conversations took place at a time when he was performing the independent medical evaluation. Further we refuse to consider the factual assertion regarding when the claimant filed the grievances, raised by the claimant for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 725 P.2d 171 (Colo.App. 1988).
The claimant additionally argues that the ALJ erred in finding that the DIME physician’s testimony was not influenced by the attorney for the respondents allegedly improperly providing legal documents to the DIME physician prior to his deposition in January 2005. The claimant again alleges violation of the Rule of Procedure XIV (L), 7 Code Colo. Reg. 1101 concerning the conduct of a DIME. This issue is factual in nature and we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-310(8) C.R.S. 2005 The DIME physician stated in his deposition that as to the material sent to him on the legal proceedings he didn’t read it and couldn’t understand it if he did (Macaulay 1/14/05 deposition at 191). The respondents prior to the DIME physician’s deposition filed a motion for communication with the DIME physician which was granted. The respondent attorney copied claimant’s counsel on the letter which was sent to the DIME physician after the motion was granted (Exhibit K attached to respondent’s position statement). Under these circumstances we perceive no basis upon which to set aside the ALJ’s determination that the petition to reopen based on fraud should be dismissed.
The claimant also argues that had she known of the existence and the extent of the DIME physicians communications and business relationship with the respondents she would not have agreed that he perform a “binding” DIME. The ALJ found the DIME physician’s professional engagement as a medical consultant on some cases not involving the claimant does not constitute a conflict of interest nor show a direct or substantial financial interest in the claim. The record amply supports the ALJ finding that the claimant did not demonstrate that the DIME physician engaged in any business relationship with the respondents as of the time the DIME was requested so as to constitute a fraud. It is true that some evidence might have been interpreted differently, or that the ALJ might have chosen to discredit the respondents evidence. However, we may not substitute our judgment for that of the ALJ on these factual issues, and we decline the claimant’s invitation to do so. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). We have reviewed the claimant’s additional arguments and they do not alter our conclusions. It follows that there was no abuse of discretion in the ALJ’s refusal to reopen the claim based on the alleged fraud.
There is substantial evidence in the record to uphold the ALJ’s dismissal of the request for penalties against the respondents. However, ALJ Muramoto’s order of June 13, 2002 reserved no issues and in view of our disposition on the issue of the petition to reopen we need not address the claims for penalties. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780
(Colo.App. 1991).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 27, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Tom Schrant ____________________________________ Robert M. Socolofsky
Joanne Arczynski, Vail, CO, Club Mediterranee of Colorado, Inc., Frisco, CO, Club Mediterranee of Colorado, Inc., Coral Gables, FL, Legal Department, Pinnacol Assurance — Interagency Mail Brad R. Irwin, Esq., Denver, CO, (For Claimant).
Thomas L. Kanan, Esq., Denver, CO, (For Respondents).