W.C. No. 4-201-940Industrial Claim Appeals Office.
June 6, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied his petition to reopen. We affirm.
The claimant sustained compensable back and head injuries on January 20, 1994. The authorized treating physician for these injuries was Dr. Harms. On March 14, 1994, the respondents filed a Final Admission of Liability stating that “per report from Dr. Harms dated 3/4/93 [sic]” claimant is at “MMI with no PPD.”
In July 1995, the claimant filed a petition to reopen. The petition asserted there was “error” because the respondent-insurer had voluntarily reopened the claim. The petition also alleged “mistake” because the claimant “has not reached MMI.” Finally, the petition contended there was a change in condition based on reports of Dr. Harms dated July 7, 1994 and November 10, 1994.
In an order dated November 13, 1995, the ALJ denied the petition to reopen. He found that when the claimant first saw Dr. Harms, he had back pain as well as headaches.
Further, the ALJ stated that the claimant was “not happy with the treatment rendered by Dr. Harms” because the treatment did not resolve the claimant’s problems.
The ALJ also found that the claimant began treatment with Dr. Durr, D.C. in June 1994. The ALJ determined that this treatment was not “authorized” because it was not based on a referral from Dr. Harms. Moreover, the ALJ noted that the claimant “acknowledged that Dr. Harms informed him that the chiropractor treatment was not authorized.”
Under these circumstances, the ALJ concluded that the claimant failed to prove a change of condition which would justify reopening the claim. Specifically, the ALJ discounted the claimant’s testimony that the chiropractic treatment improved his back condition. Moreover, the ALJ found that “Dr. Harms placed Claimant at maximum medical improvement on August 4, 1994,” and that the claimant’s condition “has not changed from the time he was placed at maximum medical improvement, nor from the time that the sixty-day time limit for objecting to the final admission of liability had passed.”
I.
On review, the claimant first contends that the ALJ failed to resolve conflicts in the evidence concerning “administrative closure of the claim.” The essence of this argument is that after the claim was closed by the final admission, the respondents “voluntarily” paid for medical treatment provided by Dr. Harms, Dr. Ewing, and Dr. Durr. The claimant notes that the treatment provided by Dr. Harms and Dr. Ewing was aimed at alleviating the claimant’s headaches, and asserts that the “only logical explanation for this course of events is that at some point Claimant requested medical care for his concussion and the carrier agreed to provide that care.” We are unpersuaded by this argument.
Once a claim is closed by a final award, additional benefits need not be provided unless the claimant demonstrates grounds for reopening as set forth in § 8-43-303(1), C.R.S. (1995 Cum. Supp). Koch Industries, Inc. v. Pena, 910 P.2d 77
(Colo.App. 1995); Burke v. Industrial Claim Appeals Office, 905 P.2d 1(Colo.App. 1994). Apparently, the claimant is asserting that he met his burden because he proved that the respondents waived the reopening requirement by paying bills for medical treatment.
It is true that legal rights may be waived by conduct Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987). However, the conduct must evidence an “intentional relinquishment of a known right” and requires “full knowledge of all the relevant facts.” Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
Here, the ALJ implicitly concluded that the respondents’ willingness to pay for the medical treatments did not evidence a knowing admission that the claimant’s condition had worsened. Indeed, in some cases respondents might pay for medical examinations and treatment after closure in and effort to discover whether the claimant’s condition has worsened sufficiently to reopen the claim. In fact, the respondents asserted that the payments were made by mistake. The claimant’s argument notwithstanding, we conclude that the respondents’ action was so ambiguous that it does not rise to the level of an intentional relinquishment of the right to insist that the claimant demonstrate grounds for reopening before the respondents were legally obligated to provide additional benefits. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ need not make findings of fact concerning evidence which he does not consider determinative of the issues involved).
The claimant has also made reference to Rule of Procedure IV(N)(3), 7 Code Colo. Reg. 1101-3 at 6.02. However, that regulation concerns admissions for temporary disability benefits, and is not applicable to the facts present here.
II.
The claimant also has disputed the ALJ’s finding of fact that Dr. Harms “placed the claimant” at MMI “on August 4, 1994.” However, this finding is amply supported by Dr. Harms’ November 10, 1994 report, where he states that the claimant was a no show for examination on August 4, 1994, and was at MMI on that date. While other inferences are possible, we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
III.
The claimant next contends that the ALJ erred in determining that change of condition is the “only ground for reopening.” In this regard, the claimant repeats his argument that the ALJ failed to consider that the respondents voluntarily reopened the claim. We have already rejected this argument. The claimant also asserts that the evidence proves there was a “mistake” concerning the seriousness of his head injury. The claimant alleges that this, in turn, led to the erroneous legal conclusion that the claimant reached MMI in March 1994. We perceive no error.
ALJs have wide discretion in determining whether to reopen a claim, and we may not interfere unless there is a showing of fraud or abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse may be shown if the order is contrary to law, or is unsupported by the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993). Needless to say, we must uphold the ALJ’s pertinent findings if supported by the evidence. Section 8-43-301(8).
Insofar as the claimant is seeking to reopen the claim based on mistake of fact or law, we perceive no error. The ALJ has determined, in effect, that the claimant was at MMI in March 1994, and remained at MMI at the time of Dr. Harms’ August 1994 report. This finding is based upon a plausible interpretation of Dr. Harms’ reports. The mere fact that Dr. Harms performed some treatment after the initial finding of MMI does not compel the conclusion that the claimant’s physical condition worsened after March since, as the ALJ found, the treatment was unsuccessful in resolving the problems which predated the initial MMI determination.
It is true that some evidence in the record would support a contrary finding and conclusion. However, this fact affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Moreover, we perceive no error in the ALJ’s statement that change of condition is the “only grounds for reopening.” As we have pointed out, the basis of the claimant’s assertion that there was a mistake of fact or law is grounded in the assertion that the claimant’s condition worsened, and therefore, destabilized after the initial determination of MMI. In this sense, the argument is really no different than the assertion that the claim should be reopened based on a worsened physical condition. Because the ALJ has rejected the argument that there was any worsening of condition, he necessarily rejected the argument that the claimant’s condition was unstable.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed June 6, 1996 to the following parties:
Kent Arneson, N10313 County Road F, Alma Center, WI 54611
Kimzey Casing Service, Inc., P.O. Box 324, Pine Bluffs, WY 82082-0324
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Kristi J. Coffin, Esq., 1416 11th Ave., Greeley, CO 80631 (For the Claimant)
Steven J. Picardi, Esq., 1660 Wynkoop St., Ste. 900, Denver, CO 80202 (For the Respondents)
By: _________________________