W.C. No. 4-100-755Industrial Claim Appeals Office.
September 20, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her petition to reopen. We affirm.
This matter was previously before us. The claimant suffered a compensable injury in 1991, and subsequently developed Reflex Sympathetic Dystrophy (RSD). In 1993, the claimant, who was the pro se, entered into an agreement for the full and final settlement of the claim. Former ALJ Wells approved the settlement on June 11, 1993.
Inclusive of a hand written interlineation, paragraph 5(a) of the settlement states that the respondents agree to pay the claimant $30,000:
“plus open and ongoing medicals until the claimant reaches maximum medical improvement and then subject to reopening pursuant to the reopening statute based on change of condition.”
Paragraph 5(e) of the agreement provides that:
“The Claimant stipulates and agrees that this claim will never be reopened under the provisions of Section 8-43-303, C.R.S., except on the grounds of fraud or mutual mistake of material fact,” and added by interlineation, “or as outlined in paragraph 5(a).”
The respondents paid ongoing medical benefits after June 1993, and the claimant’s RSD worsened. In 1996, the claimant petitioned to reopen the settlement on the grounds of “change of condition” and requested additional temporary disability benefits. The respondents objected and argued that the settlement terms precluded the claimant from reopening her right to indemnity benefits in the absence of fraud or a mutual mistake.
On August 25, 1997, former ALJ Wells found that there was no “meeting of the minds” by the parties at the time the settlement was approved because the agreement was “confusing.” ALJ Wells found the claimant believed the settlement agreement allowed her to reopen the claim for indemnity benefits if she suffered a worsened condition, while the respondents believed that a worsened condition would only be sufficient to reopen medical benefits. Under these circumstances, ALJ Wells set aside the agreement and ordered the respondents to pay additional temporary total disability benefits. The respondents timely appealed.
On appeal we concluded that ALJ Wells’ findings of fact were insufficient to determine the basis for his conclusion that the settlement was not binding. We reasoned that a settlement agreement is in the nature of a written contract which must be interpreted in accordance with the general rules which apply to the construction of contracts. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993); Resolution Trust Corp., v. Avon Center Holdings, 832 P.2d 1073 (Colo.App. 1992). The general rules of contract interpretation provide that where the contract terms are clear and unambiguous the contract must be enforced as written. Cary v. Chevron U.S.A., Inc., supra. A contract provision is ambiguous if it is fairly susceptible of more than one interpretation. Dorman v. Petrol Aspen, Inc., 914 P.2d 909
(Colo. 1996). Furthermore, the interpretation of a contract and the determination of whether a contract term is ambiguous are questions of law. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo. 1990).
In an order dated February 23, 1999, we set aside ALJ Wells’ order and remanded the matter for additional findings of fact concerning the meaning of the settlement agreement under the rules of contract interpretation. We specifically directed the ALJ to determine whether the settlement agreement was ambiguous, and, if so, attempt to resolve the ambiguity in light of extrinsic evidence concerning the parties’ intent.
On remand, the matter was reassigned to ALJ Friend. Without further hearing, ALJ Friend determined the reopening provisions of the settlement agreement are not ambiguous, and the claimant’s right to reopen is limited to medical benefits. Moreover, there was no allegation of fraud and ALJ Friend found the claimant failed to prove a mutual mistake of material fact. Therefore, ALJ Friend concluded the claimant failed to establish grounds to reopen the issue of temporary disability benefits, and denied the petition to reopen.
On review the claimant does not dispute the ALJ’s finding that she failed to prove fraud or mutual mistake of fact. Instead, the claimant contests ALJ Friend’s finding that the agreement is not ambiguous. Relying on her testimony and the order of ALJ Wells, the claimant contends there is substantial evidence that the agreement can be read as allowing the issue of temporary disability benefits to be reopened based on a change of condition. The claimant also sites the conflict between the orders of ALJ Wells and ALJ Friend to argue that the settlement agreement is subject to more than one interpretation, and therefore, is ambiguous. Further, the claimant argues that because the parties ascribed different meanings to the reopening language in paragraph 5 the parties never reached a mutual understanding which could form the basis of a binding settlement. We reject these arguments.
Contrary to the claimant’s contention, evidence the parties ascribe different meanings to a contract term does not compel the conclusion the contract is ambiguous. Dorman v. Petrol Aspen, Inc., supra. The crucial issue is whether the contract language is “fairly susceptible” to more than one meaning. Fibreglas Fabricators, Inc. v. Kylberg, supra. In resolving this question “the instrument’s language must be examined and construed in harmony with the plain and generally accepted meaning of the words used, and reference must be made to all the agreement’s provisions.” Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d at 374. Where the contract terms are unambiguous and only “fairly susceptible” to one reasonable meaning, the parties are bound by the reasonable meaning of the contract terms without regard to the meaning they individually ascribe to the agreement. Sunshine v. M.R. Mansfield Realty, Inc., 575 P.2d at 847, 849(Colo. 1978).
The fact that ALJ Wells and ALJ Friend reached different conclusions about the settlement agreement does not compel the conclusion that the agreement is ambiguous. ALJ Wells did not apply the rules of contract interpretation and did not determine whether the agreement is “fairly susceptible”of more than one meaning. Therefore, the ALJs did not reach different legal conclusions under the applicable standard.
ALJ Friend explicitly recognized that the parties ascribed different meanings to the reopening provisions of the settlement agreement, and, as a result, the claimant believed she could reopen the claimant and receive temporary disability benefits. However, ALJ Friend determined that the contract terms are unambiguous and not “fairly susceptible” to the meaning ascribed by the claimant. ALJ Friend reasoned that the portion of paragraph 5(a) which provides that, “and then subject to reopening pursuant to the reopening statutes based on change of condition,” pertains only to medical benefits, and not indemnity benefits which were the subject of the lump sum payment. ALJ Friend also found the only reasonable meaning of the settlement was that temporary disability benefits could be reopened only upon a showing of fraud or mutual mistake of fact. In so doing, ALJ Friend determined that under paragraphs 5(e), 5(m) and 6 of the settlement agreement the claimant waived the right to additional temporary disability benefits based on a worsened condition. Therefore, ALJ Friend determined the claimant’s interpretation was a mistake.
The claimant’s arguments notwithstanding, we agree with ALJ Friend’s conclusion that the only reasonable interpretation of the settlement is that the claimant waived the right to reopen the issue of temporary disability in the absence of fraud or proof of a mutual mistake of material fact. Therefore, we conclude as a matter of law that the disputed terms of the agreement are not ambiguous.
Paragraph 5(a) of the settlement agreement provides that to “compromise this claim and avoid the expense and uncertainty of future litigation,” the respondents agree to pay $30,000 in a lump sum, “plus open and ongoing medicals . . .” The term “plus” means in addition to. American Heritage Dictionary (1981). It follows that the respondents’ agreement to provide ongoing medical benefits is an extra or additional benefit above and beyond the lump sum payment for all other benefits.
Furthermore, we reject the claimant’s contention that the agreement left medical benefits open indefinitely. Rather, the respondents only agreed to provide ongoing medical benefits “until the claimant reaches maximum medical improvement and then subject to reopening pursuant to the reopening statute based on change of condition.” (Emphasis added). Therefore, we disagree with the claimant’s argument that only indemnity benefits are subject to reopening.
Because the term “then subject to reopening” is prefaced by the word “and,” and the prior term refers exclusively to medical benefits, the reopening language must also refer to the issue of medical benefits. Consequently, the explicit language which creates a right to reopen due to a change of condition refers exclusively to medical benefits. This construction is consistent with paragraph 5(b) where the agreement to pay all authorized medical, chiropractic, surgical and hospital bills “pursuant to the terms of the reopening statute” was stricken by interlineation and replaced with the term “pursuant to the terms of paragraph 5(a).”
Furthermore, § 8-43-204(1), C.R.S. 1999, provides that:
“An injured employee may settle all or part of any claim for compensation, benefits, penaltie , or interest. If such settlement provides by its terms that the employee’s claim or award shall not be reopened, such settlement shall not be subject to being reopened under any provisions of articles 40 to 47 of this title other than on the ground of fraud or mutual mistake of material fact.” (Emphasis added).
In paragraph 5(e) the claimant agreed that the claim cannot be reopened “except on the grounds of fraud or mutual mistake of material fact,” and by interlineation “or as outlined in paragraph 5(a).” As stated above, the reopening language in 5(a) is limited to the issue of medical benefits. Therefore, the interlineation language in paragraph 5(e) could only refer to the issue of medical benefits.
This interpretation harmonizes paragraph 5(a) with paragraph 5(m) where the claimant waives the right to “additional benefits” if her condition worsens in the future and paragraph 6 where the claimant agrees she will “never be able to receive any additional money” if her condition becomes worse.
Nevertheless, the claimant contends that the settlement agreement is ambiguous because paragraph 5(m) can be reasonably read to reflect the claimant’s waiver of the right to reopen based upon a worsening of condition. The claimant contends that the interlineation in 5(e) modifies the general language in paragraph 5(m) and creates a right to reopen based upon a worsening of condition.
We agree that paragraph 5(e) modifies paragraph 5(m). However, as stated above, the reference to 5(a) in paragraph 5(e) is restricted to the reopening of medical benefits after maximum medical improvement. Were that not the case, 5(e) would simply provide that the claim cannot be reopened except on the grounds of fraud, mutual mistake or change of condition.
For the foregoing reasons, we conclude as a matter of law that the reopening provisions of the settlement agreement are unambiguous. Consequently, we need not consider whether extrinsic evidence supports a contrary interpretation. See Dorman v. Petrol Aspen, Inc, supra Furthermore, ALJ Friend’s interpretation of the agreement is consistent with the plain and ordinary meaning of the contract terms. Therefore, we agree with ALJ Friend that a change of condition is legally insufficient to support to reopen the issue of temporary disability benefits.
IT IS THEREFORE ORDERED that ALJ Friend’s order dated April 14, 1999, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 20, 1999 to the following parties:
Karen L. Piel, 4946 Durasno Terrace, Security, CO 80911
Schlage Lock Company, 3866 Hancock Expressway, Colorado Springs, CO 80911-1231
CNA Insurance Company, Attn: Lisa C. Biggs, PO Box 17369, T A, Denver, CO 80217
Steven U. Mullens, Esq., PO Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe Street, Tower 3, Suite 600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy