W.C. No. 4-391-294.Industrial Claim Appeals Office.
August 13, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ Mattoon) which denied his petition to reopen based on fraud and mistake. The claimant asserts ALJ Mattoon erred in applying the doctrine of collateral estoppel to this claim, and that the ALJ failed to consider pertinent evidence on the issues of mistake and fraud. We affirm.
The claimant contended he engaged in heavy and repetitive lifting which caused an occupational disease affecting his back. The disease was allegedly incurred between August and October 1997 while the claimant handled parts in the employer’s metal treatment facility. The claim originally proceeded to hearing before ALJ Stuber in April 1999.
On May 24, 1999, ALJ Stuber entered an order denying the claim for benefits because the claimant failed to prove the back condition was a “direct and proximate result of the conditions of employment.” In support of this conclusion ALJ Stuber credited the testimony of the claimant’s supervisor, Robert Steven Bailey (Bailey), who stated the claimant’s primary job was setting up parts weighing less than one pound and the claimant did not have to do lifting in excess of 50 pounds. (Tr. April 19, 1999, Pp. 58-59, 62-63). ALJ Stuber discredited the opinion of the claimant’s medical expert, Dr. Rook, that heavy repetitive lifting caused the claimant’s back problems. The ALJ found Dr. Rook’s opinion was based on inaccurate history that the claimant’s work required heavy lifting “for 10 hour shifts 4 days per week.”
The claimant appealed ALJ Stuber’s order, and we affirmed it in a Final Order dated March 7, 2000. Apparently, the claimant appealed our order to the court, but the appeal was later dropped. It is now undisputed that the claimant exhausted all available appeals and ALJ Stuber’s order became final.
In September 2003 the claimant filed a petition to reopen based on fraud and mistake. The essence of the claimant’s allegations is that at the time of the hearing before ALJ Stuber Bailey deliberately concealed the fact that the claimant was required to lift anvils weighing 75 and 125 pounds as a regular part of his job. According to the claimant, Bailey’s false or misleading testimony caused ALJ Stuber to discredit Dr. Rook’s testimony and reach the mistaken conclusion that the back condition was not caused by the conditions of employment.
The petition to reopen was heard before ALJ Mattoon on March 1, 2004. At the hearing the claimant testified that he daily lifted 75 pound anvils by himself, and lifted 125 pound anvils with coworker Doremus. However, the claimant admitted he did not mention the anvils at the first hearing because “the question didn’t come up.” (Tr. March 1, 2004, Pp. 59, 65).
Doremus testified that the 75 and 125 pound anvils were present in the employer’s facility, but that they were usually processed on shifts other than the day shift when the claimant worked. Doremus could not say for sure whether he ever saw the claimant lifting an anvil. (Tr. March 1, 2004, P. 27).
Bailey testified that the anvils were present in the employer’s facility, but stated they were primarily processed on the night shift when the claimant was off. He stood by his prior testimony that the claimant did not lift anything over 50 pounds, and stated that if the claimant moved anvils he didn’t know about it. (Tr. March 1, 2004, Pp. 52-54).
ALJ Mattoon denied the petition to reopen in an order dated March 18, 2004, finding that the testimony of Doremus and Bailey established, at most, that the claimant may have occasionally moved an anvil. ALJ Mattoon found this evidence insufficient to prove that ALJ Stuber was mistaken in finding that the claimant did not engage in repetitive heavy lifting which caused the alleged occupational disease. ALJ Mattoon further found the evidence did not demonstrate that Bailey fraudulently testified at the first hearing. Finally, ALJ Mattoon found that, if there was any mistake, it is not the type of mistake which would justify reopening because it could have been avoided if the claimant had exercised due diligence prior to ALJ Stuber’s order. In support of this conclusion ALJ Mattoon found that it appears all witnesses presented at the time of the hearing on the petition to reopen were available at the time of the order before ALJ Stuber.
I.
On review, the claimant asserts ALJ Mattoon applied too narrow of a standard when determining whether the fraudulent conduct of Bailey warrants reopening of the claim. According to the claimant, ALJ Mattoon failed to recognize that even if the fraud could have been discovered through the exercise of due diligence reopening could still have been granted because of the injustice of permitting an erroneous result. We perceive no error.
Reopening of a closed claim may be granted based on any mistake of fact which calls into question the propriety of a prior order, even in a case where benefits properly denied on the then existing evidence. Section 8-43-303(1), C.R.S. 2003; Standard Metals Corp. v. Gallegos, 781 P.2d 142
(Colo.App. 1989). When a party seeks to reopen based on mistake the ALJ must determine “whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening.” Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399, 400 (Colo.App. 1981). When determining whether a mistake justifies reopening the ALJ may consider whether it could have been avoided through the exercise of available remedies and due diligence, including the timely presentation of evidence. See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, 694 P.2d 873
(Colo.App. 1984); Bradley v. Ampex Corp., W.C. No. 4-211-540 (May 12, 1998), aff’d. Bradley v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1026, December 10, 1998) (not selected for publication). Fraudulent testimony which procures an award or denial of benefits may constitute the type of “mistake” which justifies reopening. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995).
The power to reopen is permissive, and is therefore committed to the ALJ’s sound discretion. Further, the party seeking to reopen bears the burden of proof to establish grounds for reopening. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Because reopening is discretionary we may not interfere with the ALJ’s order unless an abuse is shown. An abuse of discretion exists only if the order is beyond the bounds of reason, as where it is contrary to law or not supported by substantial evidence. Jarosinski v. Industrial Claim Appeal Office, 62 P.3d 1082 (Colo.App. 2002).
We must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003). Further, the order need not discuss every piece of evidence, and evidence not mentioned is considered to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Further, the ALJ is presumed to have considered the relevant legal principles when entering an order. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619
(Colo.App. 2003).
Initially, we note that the ALJ found the claimant failed to prove that there was any mistake in ALJ Stuber’s order concerning the issue of causation, or that there was any fraudulent testimony by Bailey at the first hearing. While the claimant presented some evidence to ALJ Mattoon which might support a contrary conclusion, the record contains substantial evidence to support ALJ Mattoon’s findings. The basis of the claim before ALJ Stuber was that the claimant engaged in repetitive heavy lifting which caused the back problem. The testimony of Doremus at the second hearing, and the testimony of Bailey at both hearings, supports the conclusion that the claimant did not left more than 50 pounds except, perhaps, on rare occasions. ALJ Mattoon found the testimony of Doremus and Bailey persuasive, and under these circumstances plausibly inferred that there was no error in ALJ Stuber’s conclusions regarding causation.
Neither was ALJ Mattoon required to conclude that Bailey’s testimony to ALJ Stuber was fraudulent. Fraud connotes the false representation or concealment of a material fact from a party who does not know the truth, and to whom the truth should be disclosed. See Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937). ALJ Mattoon was certainly not required to conclude that Bailey concealed the presence of anvils at the first hearing. Indeed, Bailey was not asked about anvils at the hearing before ALJ Stuber. Further, based on Bailey’s testimony at the second hearing, he did not even consider this evidence pertinent since he stated he was not aware of the claimant lifting anvils. ALJ Mattoon implicitly found Bailey credible, and therefore there was no fraud.
In light of these findings, it does not matter whether ALJ Mattoon failed to consider whether factors other than due diligence justified reopening. This is true because ALJ Mattoon found on substantial evidence that there was no mistake or fraud, and these findings alone support denial of the petition to reopen.
In any event, we disagree with the claimant that ALJ Mattoon focused too narrowly on the issue of whether the alleged mistake could have been avoided through the exercise of due diligence. ALJ Mattoon is presumed to have recognized the applicable law, including her discretionary authority to weigh various factors including the injustice of permitting an incorrect result. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, supra. In fact, ALJ Mattoon explicitly discussed the law of reopening, and noted that she could “consider” whether the mistake might have been avoided. (Conclusion of Law 2). At no point did ALJ Mattoon state that she was obligated to deny the petition to reopen if the mistake could have been avoided. She merely determined that in this case she was persuaded any mistake could have been discovered and avoided by the timely presentation of evidence at the first hearing.
Moreover, we conclude that the record fully supports ALJ Mattoon’s conclusion that the claimant could have avoided any mistake by the exercise of due diligence at the first hearing. The claimant testified at the second hearing that he lifted the anvils daily. Thus, he must have been aware of the anvils and their significance at the time of the first hearing. The claimant could have testified concerning the anvils at the first hearing, called other witnesses including Doremus to testify about the claimant’s contact with anvils, and cross-examined Bailey concerning the anvils. It follows there was no error in the denial of the petition to reopen.
II.
We need not address the claimant’s arguments concerning ALJ Mattoon’s discussion of the applicability of collateral estoppel. The claimant is correct in stating that collateral estoppel and similar principles do not bar reopening of a closed claim if the claimant establishes the statutory criteria for reopening. Standard Metals Corp. v. Gallegos, supra.
Regardless of whether ALJ Mattoon’s statements concerning collateral estoppel are correct, she applied the statutory criteria for reopening and found the claimant failed to establish them. Thus, any error concerning collateral estoppel would be, at most, harmless.
IT IS THEREFORE ORDERED that ALJ Mattoon’s order dated March 18, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Richard Garcia, Colorado Springs, CO, Qualtek Manufacturing, Colorado Springs, CO, Sentry Insurance Group, Stevens Point, WI, Richard E. Falcone, Esq., Colorado Springs, CO, (For Claimant).
John M. Lebsack, Esq., Denver, CO, (For Respondents).