W.C. No. 3-974-416Industrial Claim Appeals Office.
December 20, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied and dismissed her petition to reopen a settlement agreement. We affirm.
The claimant suffered an admitted low back injury on February 28, 1990. On November 20, 1991 the claimant entered into a full and final settlement of her workers’ compensation claim in exchange for a lump sum payment, and the payment of all medical expenses “incurred by the Claimant with authorized treating physician, Robert J. Chesser, M.D.,” for a period of one year from December 5, 1991, the date the settlement was approved by the Division of Workers’ Compensation. The settlement also provided that the claimant waived her right to reopen the claim except on the grounds of fraud or mutual mistake of a material fact.
In 1992, at the request of the respondent-insurer, the claimant was examined by Dr. Crouse. In a report dated October 14, 1992, Dr. Crouse reported that:
“At the very least [the claimant] warrants myelographic and myelography CT evaluation of her 4-5 and 5-1 spaces and may possibly consider surgical intervention.”
Based upon Dr. Crouse’s report the claimant petitioned to reopen the settlement agreement. The claimant asserted that respondents withheld Dr. Crouse’s report until after December 5, 1992, and therefore, argued that the respondents should be “estopped” from enforcing the settlement concerning the termination of medical benefits on December 5, 1992. The claimant also asserted that knowledge of Dr. Crouse’s report “would have made a material difference in a decision as to whether or not to ask for further treatment with the one (1) year period” following the settlement. Further, the claimant argued that the parties were mutually mistaken concerning whether the claimant’s condition would worsen and require surgery. The ALJ rejected these arguments, and we conclude that he did not err.
In Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), the court stated that relief under the equitable doctrine of estoppel requires proof of the following:
“[T]he party to be estopped must know the relevant facts; that the party to be estopped must also intend that its conduct be acted on or must so act that the party asserting the estoppel has a right to believe the other party’s conduct is so intended; the party asserting the estoppel must be ignorant of the true facts; and the party asserting the estoppel must detrimentally rely on the other party’s conduct.”
Here, the ALJ found that the respondents did not receive Dr. Crouse’s report until December 17, 1992, and that the respondents then timely provided a copy to the claimant. (Finding of Fact 9). The ALJ also determined that the claimant was not prejudiced by the fact that she did not receive Dr. Crouse’s report until after December 5, 1992, because the claimant had continuing access to medical care during the year and could have requested additional treatment or evaluation if she believed her condition was worsening. Because the ALJ’s finding are supported by substantial evidence in the record, and plausible inferences drawn from conflicts in the record, they must be upheld. (Tr. pp. 13, Carlson depo. p. 22); § 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Further, the ALJ’s findings reflect his determination that prior to December 5, 1992, the respondents did not know the “relevant facts” concerning Dr. Crouse’s recommendation for further medical treatment, and that the claimant was not ignorant of the need for further treatment before December 5, 1992. Under these circumstances, the ALJ did not err in concluding that the claimant failed to establish the elements of estoppel.
Next, the ALJ determined that the claimant’s mistake, if any, concerning the potential worsening of her condition, was not shared by the respondent . Specifically, the ALJ found that Mary Strutt, the claims adjuster for the respondent-insurer, was aware of the claimant’s diagnoses prior to the settlement and “was aware that Claimant’s condition could worsen.” The ALJ also found that Ms. Strutt, was not mistaken about the claimant’s “potential for future worsening” and, to avoid the respondent-insurer’s exposure for benefits related to a future worsening of the claimant’s condition, sought to obtain a full and final settlement of the claim with a limitation on future medical benefits.
The ALJ’s findings are supported by Ms. Strutt’s testimony, and the medical evidence cited by the ALJ. (Tr. pp. 18, 23-24, 26, 29). For example, in 1990, Dr. Sedgwick diagnosed the claimant’s condition as spondylolisthesis, Grade I, secondary to degenerative arthritis of the facet joints, with some central canal stenosis, and mild posterior bulging of the discs at L4-L5. In 1991, the treating physician, Dr. Chesser, diagnosed spondylolisthesis, Grade 1 with bulging discs at L5-S1 and L4-L5. Accordingly, the ALJ found that Dr. Hoffman’s 1994 diagnosis of spinal stenosis was similar to the diagnoses given by Dr. Chesser and Dr. Sedgwick prior to the settlement. The ALJ’s findings are buttressed by the fact that Dr. Crouse’s recommendations were based upon a diagnosis of “spondylolisthesis with moderate spinal stenosis” and “degenerative facet disease.”
We have no authority to substitute our judgment for that of the ALJ concerning the credibility of the witnesses and the probative weight of the evidence. Martinez v. Regional Transportation District, 832 P.2d 1060
(Colo.App. 1992). Further, the ALJ’s findings support a conclusion that the claimant failed to sustain her burden to establish a mutual mistake of a material fact. Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11 (Colo. 1990); Gleason v. Guzman, 623 P.2d 378 (Colo. 1981). Therefore, we may not interfere with the order which denied the petition to reopen based upon a mutual mistake of a material fact.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 20, 1995 to the following parties:
Sonia G. Carlson, 3212 W. 48th Pl., Davenport, IA 52806
American Protection Ins. Co., Attn: Kris Dickinson, P.O. Box 5347, T.A., Denver, CO 80217-5347
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302
(For the Claimant)
Ted A. Krumreich, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528
(For the Respondents)
BY: _______________________