W.C. No. 3-063-709Industrial Claim Appeals Office.
April 28, 1998
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Martinez (ALJ) dated October 25, 1996 and January 13, 1998. We affirm the orders.
In 1989 the claimant suffered a compensable back injury and subsequently underwent multiple fusion surgeries of the lumbar spine. Based upon the opinion of Dr. Roth, the respondents filed a Final Admission of Liability which admitted liability for maximum permanent partial disability benefits, and listed the date of maximum medical improvement (MMI) as November 17, 1993.
On June 10, 1994, the parties entered into a “Stipulation for Full and Final Settlement and Release of All Claims” (Settlement). The Settlement provided that, in exchange for a lump sum payment, the claimant waived his right to further benefits except medical benefits for one year. The claimant also waived the right to reopen the claim except on grounds of fraud or mutual mistake of material fact.
In 1995 the claimant filed a Petition to Reopen the Settlement alleging a mutual mistake of a material fact. Relying on the opinion of Dr. Odom, the claimant alleged that the prior fusion surgeries did not result in a solid union at L4-S1. The claimant argued that in the absence of a solid union of the vertebrae he had not reached MMI. Therefore, he argued that the parties were mutually mistaken that he was at MMI at the time of the Settlement.
The ALJ rejected the claimant’s contention that MMI was material to the Settlement, and therefore, the ALJ denied the petition to reopen. However, on appeal, we concluded, as a matter of law, that the existence of MMI was a fact which was “material” to the Settlement. Therefore, in an Order of Remand dated August 29, 1996, we set aside the ALJ’s order and directed the ALJ to determine whether the claimant established a “mutual mistake” concerning whether he was at MMI.
On remand the ALJ issued an order dated October 25, 1996, in which he found that, at the time of the settlement, the parties were mutually mistaken that the claimant was at MMI, and that the mistake is sufficient to warrant reopening the Settlement. However, the order did not award or deny any specific benefits. Consequently, we dismissed the respondents’ appeal without prejudice for lack of a final order.
On January 13, 1998, the ALJ ordered the respondents to pay temporary disability benefits pursuant to the terms of the parties’ stipulation dated January 5, 1998. This appeal followed.
The respondents contend that the record does not support the ALJ’s finding of a mutual mistake of fact which justifies reopening the claim. In support, the respondents contend that the existence of a solid union of the lumbar spine pertains to the claimant’s prognosis. Therefore, the respondents argue that the parties mistaken belief that the claimant had a solid union is insufficient to justify reopening the claim. Alternatively, the respondents argue that there is no evidence of a “mutual” misunderstanding concerning whether the claimant had a solid union at L4-S1. We disagree.
A mistake may be found where parties settle a claim without being fully informed concerning the “extent, severity and likely duration” of the injury. Gleason v. Guzman, 623 P.2d 378 (1981). In this regard the mistake must pertain to a past or present fact not an opinion or prophecy about the future. Gleason v. Guzman, 623 P.2d 378 (1981). Further, a mutual mistake is one which is reciprocal and common to both parties to an agreement. Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11 (Colo. 1990); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
There is no “litmus-type” test for determining whether a mistake pertains to a past or present fact as opposed to a prediction or prognosis about the claimant’s future condition, and this issue “is essentially factual in character.” Gleason v. Guzman, 623 P.2d 384. Consequently, we must uphold the ALJ’s finding of a mutual mistake if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Maryland Casualty Co. v. Buckeye Gas Products Co., supra. In applying the substantial evidence test, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The respondents’ arguments notwithstanding, there is substantial evidence in Dr. Odom’s reports to support the ALJ’s finding that the Settlement was based upon a mistake concerning a past or present fact. In a clinic note dated April 26, 1995, Dr. Odom stated:
“I thought at the time that I took the screws out on 8/2/93 that he had a solid union. In retrospect, however, it’s very obvious that he now has a non-union. I was wrong at the earlier date.”
Dr. Odom also expressly rejected the theory that the non-union was due to a worsening of the claimant’s condition from a subsequent injury. To the contrary, in his report dated July 23, 1995, Dr. Odom opined that the claimant “never ever had a solid union at L5-S1.” Furthermore, in a letter dated May 12, 1995, Dr. Odom stated that the claimant’s treatment for the industrial injury ” is not complete until [the claimant] has a solid union at the bottom of his spine.”
Under the law applicable to this claim, MMI is defined as the point in time when the claimant’s condition is stable and no further treatment is reasonably expected to improve the condition Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080
(Colo.App. 1990). Thus, a determination of MMI terminates the claimant’s right to medical care designed to improve the condition and restricts further medical benefits to treatment required to maintain or prevent a deterioration of the claimant’s condition Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609
(Colo.App. 1995). MMI also triggers the right to permanent partial disability benefits. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). It follows that MMI is inconsistent with a need for further treatment reasonably necessary to improve the claimant’s condition from the industrial injury.
Here, the claimant testified that he believed he was at MMI at the time he entered into the Settlement. (Tr. January 9, 1996, p. 5). Further, we adhere to our prior conclusion that the existence of MMI was a factor which influenced the respondents’ decision to settle the claim. Accordingly, Dr. Odom’s opinions support the ALJ’s finding that the parties were mutually mistaken in their belief that the claimant was at MMI at the time of the Settlement.
Moreover, because the parties believed the claimant attained MMI in 1993, the 1994 Settlement was necessarily predicated on a mistake concerning the present stability of the claimant’s condition, as opposed to a prediction or prognosis concerning claimant’s future condition. Consequently, we reject the respondents’ contention that the claimant failed to establish a mistake which justified reopening the Settlement.
The respondents’ remaining arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s orders dated October 25, 1996 and January 13, 1998 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 28, 1998 to the following parties:
Sean D. Davis, P.O. Box 1603, Arboles, CO 81121
Critter’s Meat Factory, 1111 Camino del Rio, Durango, CO 81301
Colorado Compenation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Daniel G. Spitzer, Esq., 1911 Main Ave., Ste. 103, Durango, CO 81301 (For the Claimant)
Kendra M. Oyen, Esq., 415 Brach Dr., Grand Junction, CO 81503 (For the Respondents)
Office of the Attorney General, Civil Litigation Section, 1525 Sherman St., 5th Flr., Denver, CO 80203-1760 (For Subsequent Injury Fund)
BY: _______________________