W.C. No. 4-211-540Industrial Claim Appeals Office.
May 12, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ), dated June 30, 1997, which denied her petition to reopen. We affirm.
In February 1993, the claimant sustained a compensable occupational disease affecting her upper extremities. The physicians who treated the claimant’s physical problems opined that she reached maximum medical improvement (MMI) in the summer of 1994. However, shortly thereafter, the claimant was referred for psychological counseling and treatment. On October 28, 1994, Dr. Cohen, the treating psychiatrist, issued a report stating the claimant was well “compensated psychologically” and that further treatment would “go to a P.R.N. schedule rather than weekly sessions.” Dr. Cohen added that he would “probably see” the claimant on a “monthly basis for a while just to continue to advise her on her options and choices.”
In December 1994, the matter went to hearing concerning the claimant’s right to temporary disability benefits. In an order dated February 1, 1995, the ALJ found the claimant reached MMI from the physical aspects of her injury on July 29, 1994, and was entitled to temporary disability benefits up to that date. Relying on Dr. Cohen’s October 28 note, the ALJ found the claimant reached MMI with respect to the “psychological component” of her injury on October 28. However, the ALJ concluded the claimant was not entitled to temporary disability benefits between July 29 and October 28 because she was not “released from work” on account of the psychological condition during that period of time.
Ultimately, the Court of Appeals set aside the ALJ’s February 1 order in Bradley v. Ampex Corp., (Colo.App. No. 96CA0194, September 12, 1996) (not selected for publication). Relying o PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the court remanded the matter and instructed the ALJ to make findings “concerning the impact, if any, that claimant’s psychological condition had upon her post-layoff wage loss.”
Pursuant to the court’s remand, the matter proceeded to a second hearing on January 3, 1997. In an order dated January 17, 1997, the ALJ again found the claimant reached MMI from a “psychological perspective” on October 28, 1994, and that the claimant’s ability to obtain employment was affected by her psychological condition. Consequently, the ALJ awarded temporary total disability benefits from September 23, 1994 through October 28. This order was not appealed.
On March 31, 1997, the claimant filed a petition to reopen the claim alleging error or mistake. The petition was accompanied by a report of Dr. Cohen dated February 28, 1997, stating the claimant was not at MMI when he saw her on February 24, 1995. Dr. Cohen also opined the claimant did not reach MMI until December 30, 1996.
At the hearing on the petition to reopen, the respondents offered into evidence a second letter authored by Dr. Cohen. This letter, dated February 24, 1995, states the doctor reviewed the ALJ’s order of February 1, 1995, and wished to take “strong exception and objection” to the ALJ’s “statements and assumptions.” Specifically, Dr. Cohen stated he never placed the claimant at “maximum psychological improvement.”
In the order of June 30, 1997, the ALJ denied the claimant’s petition to reopen. The ALJ found that Dr. Cohen’s letters of February 24, 1995 and February 28, 1997 do not support the allegation that the prior determinations of MMI were the product of an error or mistake. The ALJ also concluded that, even if he mistakenly found the claimant reached MMI on October 28, it was not the type of mistake which would justify reopening because the mistake “could have been avoided by the filing of a timely appeal.”
On review, the claimant contends the ALJ erred as a matter of law in denying the petition to reopen based on error or mistake. The claimant reasons that Dr. Cohen’s letters of February 24, 1995 and February 28, 1997 unequivocally establish that Dr. Cohen did not believe the claimant reached MMI on October 28, 1994. Thus, the claimant asserts the ALJ’s prior determinations that the claimant reached MMI on October 28, 1994 are mistaken. Further, the claimant asserts the ALJ had no discretion to deny the petition to reopen because he was bound by Dr. Cohen’s opinion, as the treating psychiatrist, that the claimant did not reach MMI. We are not persuaded.
Section 8-43-303(1), C.R.S. 1997 permits an ALJ to reopen a claim based on an error or mistake. This includes a mistaken finding of fact. See Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989).
The power to reopen is committed to the sound discretion of the ALJ. In exercising this power the ALJ must first determine whether there has been a mistake, and if so, whether it is the type of mistake which justifies reopening the claim. Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399 (Colo.App. 1981). In determining whether an alleged mistake is the type justifying reopening, the ALJ may consider whether the mistake might have been avoided through the exercise of due diligence at the time of the hearing, or through the timely exercise of appellate rights. See Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984); Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 683 (1972) aff’d, 179 Colo. 258, 499 P.2d 1188 (1972).
Because the ALJ’s power to reopen is discretionary, we may not interfere with the order unless it based on fraud or a clear abuse of discretion. Renz v. Larimer County School Dist. Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Generally, 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. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The claimant’s argument notwithstanding, we cannot say the ALJ abused his discretion in finding there was no “mistake” when he determined (in the order of January 17, 1997) that the claimant reached MMI for the psychological condition on October 28, 1994. It is true, as the claimant argues, that an ALJ is generally bound by the opinion of the treating physician concerning whether or not the claimant has reached MMI. See statute currently codified at §8-42-107(8)(b)(I) and (III), C.R.S. 1997. However, the court of appeals has held that an ALJ retains fact-finding authority to determine the date MMI if the authorized treating physician “issues conflicting opinions.” Blue Mesa Forest v. Lopez, 928 P.2d 831, 833 (Colo.App. 1996).
Here, the ALJ determined that he was not mistaken when he found the claimant reached MMI on October 28 because Dr. Cohen’s October 28 office note indicates that active treatment was over and the claimant was to return only as needed to discuss “options and choices.” (Tr. p. 14). We agree with the ALJ that the October 28 office note permits the inference that Dr. Cohen placed the claimant at MMI because her condition was stable and nothing further in the way of treatment was likely to improve her condition. Section 8-40-201(11.5), C.R.S. 1997.
It is true that Dr. Cohen’s letters of February 24, 1995, and February 28, 1997, contradict the inference of MMI flowing from the October 28 office note. However, the effect of this contradiction is merely to present a conflict in the evidence for the ALJ to resolve. In this regard, we note that the February 24 letter appears to contain an inconsistency because it indicates the claimant is not at MMI, and yet states “there is no permanent impairment on the psychological component.” Moreover, as the ALJ recognized, Dr. Cohen’s letters might permit the inference that the claimant worsened subsequent to the initial date of MMI. Under these circumstances, we lack the authority to substitute our judgment for that of the ALJ concerning the weight and inferences to be drawn from Dr. Cohen’s various reports. Section 8-43-308(1).
However, even if it were concluded that the ALJ was mistaken in determining the claimant reached MMI on October 28, we cannot say the ALJ erred in denying the petition to reopen. The claimant cannot, and does not, deny that her attorney was in possession of Dr. Cohen’s February 24, 1995 letter at the time of the hearing in January 1997. Thus, counsel was in possession of documentary evidence which established the claimant’s date of MMI was not October 28, 1994, but some later date.
Despite possessing this information, the claimant did not raise an issue concerning the date of MMI, nor offer into evidence the February 1995 letter. Moreover, the claimant was certainly aware that the date of MMI was at issue, and the ALJ could plausibly conclude that, in the exercise of due diligence, counsel should have raised the issue of whether the claimant reached MMI on October 28.
In any event, the ALJ could conclude that if claimant’s counsel had exercised due diligence prior to the December 1994 hearing he could have discovered that Dr. Cohen had doubts about whether the claimant was at MMI or not. Instead, counsel admitted that he merely accepted the October 28 office note as tantamount to a statement of MMI, and did no further investigation on this issue. (Tr. p. 11).
Under these circumstances, we cannot say the ALJ abused his discretion in determining that the alleged mistake of fact is the type of mistake which required reopening of the claim. To the contrary, the exercise of due diligence prior to the hearings in 1994 and 1997 could have avoided the necessity of filing a petition to reopen.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
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 May 12, 1998 the following parties:
Corina Bradley, 2201 S. Hancock, Colorado Springs, CO 80909
Dave Campbell, Ampex Corporation, 600 Wooten Rd., Colorado Springs, CO 80915
Tambra Redlin, Crawford Co., 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
Joel S. Babcock, Esq., 400 S. Colorado Blvd., #700, Denver, CO 80222 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
By: __________________________________________________