W.C. No. 3-108-724Industrial Claim Appeals Office.
March 19, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which reopened the claim and awarded additional permanent partial disability benefits. We affirm.
In an order dated September 18, 1995, the ALJ awarded the claimant permanent partial disability benefits based on an apportioned medical impairment rating of ten percent of the whole person. In that order, the ALJ found that the claimant underwent a Division-sponsored independent medical examination (IME) for purposes of determining permanent impairment. The IME physician rated the claimant as suffering a sixteen percent whole person impairment based on four percent impairment of the knee and twelve percent impairment for a cervical and back condition. However, the IME physician also opined that the claimant had preexisting degenerative changes of the cervical and lumbar spine, and therefore, he “arbitrarily” apportioned fifty percent of the cervical and back impairment to preexisting “pathology.”
The respondents appealed the ALJ’s September 1995 order on the ground that the ALJ should not have “combined” the six percent rating for the back with an extremity rating for the claimant’s knee. The claimant did not appeal. Ultimately, we upheld the ALJ’s order on December 15, 1995.
In May 1997, the claimant petitioned to reopen alleging error and mistake. Citing the Supreme Court’s decision in Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), the claimant argued that the ALJ’s 1995 order erroneously upheld the apportionment of the rating based on his preexisting but asymptomatic degenerative back condition.
In the order dated September 26, 1997, the ALJ granted the petition to reopen. The ALJ determined that his 1995 order was “based upon a mistake and error which occurred when claimant’s impairment rating was arbitrarily apportioned based upon a nonrated pre-existing condition which was asymptomatic.” In support, the ALJ found that the claimant’s back condition was “discovered only upon examination by physicians treating claimant for his work related injury.” Consequently, the ALJ awarded permanent partial disability benefits based upon the IME physician’s unapportioned sixteen percent whole percent impairment rating.
I.
On review, the respondents contend that the ALJ erred in finding a mistake or error based upon the Supreme Court’s announcement of its decision in Askew. Specifically, the respondents argue that announcement of the Askew decision is not sufficient to establish that the ALJ’s 1995 order was “mistaken.” In any event, the respondents assert that the matter should not reopened because the claimant did not appeal the ALJ’s 1995 order. We find no error.
Section 8-43-303(1), C.R.S. 1997, permits reopening on grounds of error and mistake. A mistake of law may be found where a party establishes that an order is inconsistent with a subsequently announced judicial interpretation of a controlling statutory provision. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). The ALJ’s authority to reopen based on mistake is discretionary.
It is certainly true that the ALJ may consider whether the alleged mistake could have been avoided by the exercise of appropriate procedural or appellate rights. See Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984). However, the failure to exercise procedural or appellate rights is not fatal, and 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).
Here, we perceive no abuse of discretion in the ALJ’s decision to reopen the claim. The Supreme Court’s decision i Askew, which was announced after the ALJ’s 1995 order apportioning the claimant’s disability, establishes that preexisting impairment is not apportionable unless it has “been sufficiently identified, treated, or evaluated to be rated as a contributing factor in the subsequent disability.”927 P.2d at 1338. In his order reopening the claim the ALJ indicated that, had he been aware of the principles announced in Askew at the time of his 1995 order, he would not have apportioned the claimant’s impairment based on the preexisting degenerative back condition. This finding amply supports the ALJ’s conclusion that his 1995 order was based on a mistake of law.
It is true, as the respondents argue, that the claimant might have avoided this error had he appealed the 1995 order. Despite this possibility, we cannot say the ALJ abused his discretion in reopening the matter. To the contrary, the ALJ concluded that the failure to appeal must be weighed against the unfairness of depriving the claimant of permanent disability benefits to which he is entitled under the applicable law. The ALJ’s order in no way exceeds the bounds of reason, and we decline to interfere with it. See Ward v. Azotea Contractors, 748 P.2d 338 (Colo. 1987).
II.
The respondents also argue that the ALJ’s order constitutes de facto retroactive application of Askew. The respondents argue that retroactive application is improper because Askew announced a new rule of law, and because retroactive application of the rule is inequitable. We are not persuaded.
Judicial decisions are usually accorded retroactive effect, but our courts have ruled that they need not be given retroactive application in all circumstances. If retroactive application of a judicial decision is challenged, a court must first determine whether the decision established a new rule of law. If the decision established a new rule, the court must then determine whether or not the purposes of the rule would be furthered by retroactive application. Finally, a court must determine whether inequitable results may flow from retrospective application of the decision. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992); Marinez v. Industrial Commission, 746 P.2d 552 (Colo. 1987).
We assume, arguendo, that Askew established a new rule of law. Although Askew is partially based on prior case law, a substantial portion of the decision rests on statutory construction of the 1991 amendments to the Workers’ Compensation Act. As evidenced by the underlying decision of the Court of Appeals in Askew, proper interpretation of these new provisions was the subject of substantial controversy. Askew v. Sears, Roebuck Co., 914 P.2d 416 (Colo.App. 1995). Under these circumstances, we can’t say that the result in Askew was clearly foreshadowed.
However, in our view, the purposes underlying the Supreme Court’s opinion in Askew are served by retroactive application of the decision. The court concluded that the 1991 amendments to the Workers’ Compensation Act, which incorporate the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), affect the definition of an apportionable “disability” as the term is used in § 8-42-104(2), C.R.S. 1997. The court concluded that the AMA Guides do not contemplate apportionment of a “preexisting condition which was dormant or asymptomatic prior to an industrial injury.”927 P.2d at 1338. The court reasoned that this concept should be ascribed to § 8-42-104(2).
As the Askew court itself noted, the prohibition against apportioning to preexisting asymptomatic conditions is consistent with many cases interpreting the law at it existed prior to the 1991 amendments. Thus, it makes little sense to suggest that the law of apportionment should be different for the short period of time between enactment of the 1991 amendments and announcement of the decision in Askew. To the contrary, this result would deprive a relatively small group of claimants of benefits to which they would have been entitled prior to 1991 and after Askew. Further, this result would be inconsistent with Askew’s purpose of requiring apportionment only where the preexisting condition is independently disabling. Baldwin Construction, Inc. v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997).
Neither have the respondents made a persuasive case that any substantial inequity will result from retrospective application o Askew. The respondents introduced no evidence whatsoever demonstrating that they, or other respondents, will be unfairly impacted by retroactive application of Askew. Further, we may not administratively notice any such impact. See Loffland Brothers Co. v. Industrial Claim Appeals Panel, 770 P.2d 1221 (Colo. 1989). Therefore, the respondents’ equitable argument lacks merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ David Cain __________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed March 19, 1998 to the following parties:
Joseph A. Plotner, 2713 B Road, Space 18, Grand Junction, CO 81503
Westran, Inc., P.O. Box 9259, Missoula, MT 59807-9259
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
J. Keith Killian, Esq. Joanna C. Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For Claimant)
Fay Boyd, IME, Division of Workers’ Compensation — Interagency Mail
By: ________________________________