IN RE AXELSON, W.C. No. 3-991-705 (5/31/96)


IN THE MATTER OF THE CLAIM OF BARBARA J. AXELSON, Claimant, v. PACE MEMBERSHIP WAREHOUSE, DIVISION OF K-MART CORPORATION, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 3-991-705Industrial Claim Appeals Office.
May 31, 1996

ORDER OF REMAND

The claimant seeks review of a final order of Administrative law Judge Wheelock (ALJ) which denied her petition to reopen. We set the order aside and remand for further proceedings and entry of a new order.

A review of the complex procedural history of this case is necessary to an understanding the issues involved. The claimant sustained a shoulder injury in June 1990. The claimant continued to work for respondent PACE Membership Warehouse (PACE) until sometime in July 1990, when she was terminated. The effect of the termination on the claimant’s right to temporary disability benefits was litigated, and ultimately resolved in the claimant’s favor.

In February 1994, the case proceeded to a hearing on the issues of maximum medical improvement (MMI) and permanent partial disability benefits. In an order dated February 22, 1994, the ALJ found that the claimant reached MMI on December 15, 1992, with a permanent partial disability of seven percent as a working unit.

The ALJ’s determination that the claimant reached MMI on December 15, 1992, was based on Dr. Bernton’s independent medical examination reports dated December 15, 1992, and September 28, 1993. In the December 15 report, Dr. Bernton opined that the treating physician, Dr. Yarnell, had been unreasonable in treating the claimant’s condition with two and one-half years of physical therapy. Dr. Bernton opined that the claimant should undergo a series of trigger point injections, and possibly a stellate ganglion block, to determine whether she could obtain further relief. In the September 28, 1993 report, Dr. Bernton stated that the claimant had not undergone the recommended therapies, and therefore, was at MMI.

In January 1995, the claimant filed a petition to reopen. The petition alleged that acupuncture treatments, provided by Dr. Hanson, had dramatically improved her condition. Therefore, the claimant contended that the ALJ’s prior determination of MMI was “mistaken.”

Prior to the hearing on the petition to reopen, the claimant was again examined by Dr. Bernton. In a report dated June 5, 1995, Dr. Bernton stated that the claimant had “significantly improved” after the acupuncture treatment, “which is in many ways similar to the trigger point injections, which had originally been recommended, and the patient had declined to pursue.” In view of the claimant’s improved condition, Dr. Bernton reduced the claimant’s medical impairment rating from seven percent to four percent of the whole person.

In an order dated October 23, 1995, the ALJ denied the claimant’s petition to reopen. Although the ALJ ordered the respondent to pay for an additional twelve acupuncture treatments, she stated that “the prior determination that the claimant was maximally improved as of December 15, 1992, was correct when made and does not represent a mistake as alleged in claimant’s petition to reopen.” In support of this conclusion, the ALJ noted that the “prior determination” was based on the “long standing stability of [claimant’s] condition,” as well as Dr. Bernton’s 1992 and 1993 reports. Moreover, the ALJ stated that Dr. Bernton’s June 5, 1995 report does not “disavow his earlier determination of MMI or acknowledge any mistakes concerning that determination.” Finally, the ALJ stated the claimant presented “no evidence” that the prior determination was wrong.

The ALJ went on to state that the claimant presented “no evidence of temporary total disability” subsequent to the February 22, 1994 order. Specifically, the ALJ stated that the claimant failed to present evidence that she is unable to work, and found that the claimant has “remained capable of work in her chosen field of computer graphics.”

On review, the claimant contends that the ALJ erred in determining that she failed to prove a mistake of fact. The claimant argues that the evidence proves that the acupuncture treatments have improved her condition, and therefore, the ALJ’s 1994 determination of MMI was “mistaken.” We agree with this argument, and conclude that the matter should be remanded for additional proceedings concerning the claimant’s petition to reopen and entitlement to temporary total disability benefits.

Section 8-43-303(1), C.R.S. (1995 Cum. Supp.), provides that an ALJ may “reopen any award on the ground of an error, a mistake, or a change in condition.” Under this statute a claim may be reopened whenever the ALJ concludes that a prior decision was wrong because of a mistake State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926). In considering whether to reopen based on a mistake, the ALJ must determine “whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening the case.” Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399, 400 (Colo.App. 1981).

ALJs possess broad authority in considering petitions to reopen, and we may not interfere with a decision unless there has been fraud or an abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986). An abuse is shown in circumstances where the order is contrary to law, or unsupported by the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).

Here, we conclude that the ALJ abused her discretion because she applied an incorrect legal standard in determining that the claimant failed to prove a “mistake” sufficient to reopen the claim. The ALJ’s order notwithstanding, the question is not whether the February 1994 determination of MMI was “correct when made.” Rather, the question is whether the claimant’s subsequent improvement with acupuncture casts doubt on the 1994 finding of MMI. If so, the claimant established a “mistake” with respect to the 1994 determination. See Standard Metals Corp. v. Gallegos, 781 P.2d 142, 145 (Colo.App. 1989) (Post-order improvements in medical science may be the basis of reopening for mistake even if the prior order was “correct on the evidence as it then existed.”).

Further, we agree with the claimant that the evidence establishes that the original termination of MMI was incorrect as a matter of fact, and therefore, “mistaken” for purposes of § 8-43-303(1). Under the law applicable to this claim, MMI exists if the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). Where the undisputed evidence establishes that a course of treatment will improve the claimant’s condition, the evidence is necessarily inconsistent with a finding of MMI Reynolds v. Industrial Claim Appeals Office, supra.

In this case, the evidence is undisputed that the acupuncture improved the claimant’s condition. Although it is true that Dr. Bernton did not expressly “withdraw” his prior opinion concerning MMI, he stated that the acupuncture “significantly improved” the claimant’s clinical status by decreasing her pain, improving her range of motion and reducing her medical impairment rating. Under these circumstances, the February 1994 finding of MMI was mistaken because it is contrary to the evidence presented on reopening. Cf. Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo.App. 1983) (prior finding of MMI nullified by claimant’s willingness to undergo treatment which she had previously refused).

However, our determination that the ALJ’s 1994 order was “mistaken” with respect to MMI does not automatically lead to the conclusion that the claimant is entitled to reopen the claim. On remand, the ALJ must determine whether the mistake is the type of mistake which justifies reopening. Travelers Insurance Co. v. Industrial Commission, supra.

The claimant is contending that the newly discovered evidence concerning the effectiveness of acupuncture is the type of mistake which justifies reopening. However, a party’s failure to exercise due diligence in obtaining relevant information prior to a hearing may justify the conclusion that the resultant “mistake” does not justify reopening. See Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984).

Here, the ALJ referred to Dr. Bernton’s statement that the acupuncture treatments were “similar to the trigger point injections” he had recommended in 1992. This evidence raises the possibility that the claimant failed to exercise due diligence in obtaining evidence that she was not MMI prior to the February 1994 hearing. On remand, the ALJ should determine whether the claimant failed to exercise due diligence in obtaining and presenting evidence, in 1994, concerning her need for additional treatment. Because this issue was not specifically addressed by the parties, the ALJ should afford them an opportunity to present whatever argument they may desire prior to deciding the issue. We should not be understood as expressing any opinion concerning inferences to be drawn from the evidence, or the resulting legal conclusions.

If the ALJ determines that the claim should be reopened, we also direct her to reconsider her conclusions concerning the claimant’s entitlement to temporary disability benefits. The ALJ’s order notwithstanding, the test for temporary disability benefits is not whether the claimant can perform work in her chosen field of computer graphics. Rather, the correct test is whether medical restrictions, resulting from the industrial injury, preclude the claimant from performing her pre-injury employment during the healing period prior to MMI. See J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).

It is true that the claimant’s performance of alternative employment within her restrictions may reduce the claimant’s entitlement to temporary disability benefits because it reduces, or eliminates, her wage loss. However, the claimant’s ability to perform alternative employment in computer graphics does not preclude an award of temporary disability benefits. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).

Moreover, the ALJ’s findings in the February 1994 order support the conclusion that the claimant was physically restricted from performing her pre-injury duties. The ALJ found that the claimant’s pre-injury employment required her to lift up to ninety pounds. Dr. Bernton’s June 5, 1995 report states the claimant should not lift over thirty-five pounds on an occasional basis. Therefore, there was ample evidence that the claimant remained physically restricted from performing her pre-injury employment.

IT IS THEREFORE ORDERED that the ALJ’s order, dated October 23, 1995, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEAL PANEL

___________________________________ David Cain
___________________________________ Kathy E. Dean

Copies of this decision were mailed May 31, 1996 to the following parties:

Barbara J. Axelson, 4616 S. Logan, Englewood, CO 80110

Pace Membership Warehouse, Division of K-mart Corp., % Mcmillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211

John V. FitzSimons, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)

William A. Alexander, Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For the Claimant)

By: ______________________