W.C. No. 4-158-043Industrial Claim Appeals Office.
September 17, 1998
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ Gandy), which denied his petition to reopen. We set aside the order and remand for entry of a new order.
The claimant suffered an admitted low back injury on December 15, 1992. On December 14, 1995, a hearing was held on the issues of permanent partial and permanent total disability. In an order dated January 22, 1996, ALJ Stuber denied the claim for permanent total disability. In so doing, ALJ Stuber rejected Dr. Mark Litvin’s opinion that the claimant is unable to earn any wages, and credited the testimony of vocational rehabilitation expert Cynthia Bartmann, who stated that the claimant is capable of earning wages in several jobs. However, ALJ Stuber awarded permanent partial disability benefits based upon 29 percent permanent medical impairment and 6 percent permanent mental impairment. The claimant appealed the order denying permanent total disability benefits. ALJ Stuber’s order was affirmed on appeal.
The claimant subsequently petitioned to reopen the claim on the grounds of error, mistake and change of condition. The claimant sought permanent total disability benefits, additional permanent partial disability benefits and future medical benefits in accordance with Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988).
At the commencement of the hearing on March 13, 1998, before ALJ Gandy, the respondents stipulated to an award of Grover type medical benefits. However, the respondents opposed the petition to reopen and the claims for permanent total or additional permanent partial disability benefits.
Based upon the respondents’ stipulation, ALJ Gandy awarde Grover type medical benefits. However, ALJ Gandy determined the claimant failed to establish grounds to reopen the claim on the issue of permanent disability. Therefore, ALJ Gandy denied the requests for additional permanent partial disability benefits and permanent total disability benefits.
On review, the claimant contends, inter alia, that ALJ Gandy erroneously refused to reopen the claim on the grounds of mistake or error. Because ALJ Gandy misapplied the law, we remand the matter for the entry of a new order.
ALJ Gandy found that:
“A Petition to Reopen cannot be substituted for a Petition to Review, and if mistakes were made prior to presentation of evidence in this matter at the former hearing in this matter they must be addressed in a Petition to Review, and cannot be addressed in a Petition to Reopen a matter in which a final order has been entered. The final order becomes the law of the case and no party can go behind the final order to show the evidence was factually in error.”
Reopening of a claim is a matter within the discretion of the ALJ. We may not interfere with the ALJ’s determination unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
Reopening may be based on a showing that a prior award was mistaken either as to fact or law. Renz v. Larimer County School District Poudre R-1, supra. Insofar as the claimant alleges an error or mistake, the ALJ must engage in a two-step analysis. The ALJ must first determine whether there has been an error or mistake. If there is an error, the ALJ must determine whether it is the type of error which warrants a reopening. Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984). In determining whether a mistake warrants reopening the ALJ may consider whether it could have been avoided by the timely exercise of appropriate procedural or appellate rights. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967) Klosterman v. Industrial Commission, supra. However, the failure to exercise procedural or appellate rights is not dispositive of whether the claimant has established an error or mistake which justifies reopening the claim. Renz v. Larimer County School District Poudre R-1, supra. To the contrary, the ALJ may exercise his discretion to reopen a claim if he determines that the overall circumstances warrant reopening. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989); Plotner v. Westran, Inc., W.C. No. 3-108-724 (March 19, 1998). The doctrines of res judicata and collateral estoppel, cited by the ALJ, bar litigation for an adjudicated claim or issue only so long as the claim has not been reopened on proper statutory grounds. Renz v. Larimer County School District Poudre R-1, supra.
It follows that the ALJ Gandy erred insofar as he determined that he was precluded from reopening the claim based upon a mistake or error that could have been raised in the claimant’s petition to review ALJ Stuber’s order. Consequently, the matter is remanded to ALJ Gandy for the entry of a new order which reflects his consideration of the proper legal standard.
However, our remand should not be understood as reflecting any opinion concerning whether the claimant established a mistake or error which justifies reopening the claim. That is a matter within the sole discretion of the ALJ.
In view of our remand it is premature to consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that ALJ Gandy’s order dated April 1, 1998, is set aside and the matter is remanded to ALJ Gandy for a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed September 17, 1998 to the following parties:
Scott A. Notz, 20719 County Rd. 73, Calhan, CO 80808
Notz Masonry, Inc., 20433 County Road 73, Calhan, CO 80808-9602
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
Gary J. Benson, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80212 (For the Employer)
Steven Picardi, Esq., 1660 Wynkoop St., #900, Denver, CO 80202 (For Respondents)
BY: _______________________