W.C. No. 3-070-168Industrial Claim Appeals Office.
July 20, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated January 21, 1998, which denied his “Motion to Reconsider.” We affirm.
The claimant suffered a work-related injury on December 11, 1990. The respondents admitted liability based upon an average weekly wage of $569.41, which entitled the claimant to temporary disability benefits of $379.61, the maximum rate of benefits in December 1990. Following maximum medical improvement, the claimant’s condition worsened. The respondents voluntarily reinstated temporary disability benefits commencing May 4, 1995, at the rate of $379.61 per week.
The claimant’s 1995 earnings were much higher than his earnings in 1990. Therefore, relying on Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993), the claimant sought an order requiring the respondents to pay temporary total disability benefits based upon his 1995 earnings, up to the maximum temporary disability rate in 1995.
The ALJ determined that there is no statute or case law, including Campbell v. IBM Corp, supra, which allows an ALJ to award temporary total disability benefits in excess of the maximum temporary disability rate in effect on the date of injury. Therefore, in an order dated April 18, 1997, the ALJ determined that the claimant is limited to temporary total disability benefits at the maximum rate in effect in December 1990. We affirmed the ALJ’s order on September 9, 1997, and the claimant did not appeal our order.
The claimant subsequently requested that the ALJ “reconsider” the April 18 order based on “new case law authority which has recently come to light.” In support, the claimant cited Public Service Corp. v. Berkenkotter (Colo.App. No. 96CA0711, March 6, 1997) (not selected for publication). In that case, the court upheld our conclusion that an ALJ did not abuse his discretion in calculating a claimant’s permanent total disability rate based on the claimant’s average weekly wage at the time of the permanent total disability and not the original injury. See Berkenkotter v. Public Service Company of Colorado, W.C. No. 3-644-433, (April 18, 1996).
The ALJ found that the “Motion to Reconsider” was without merit and that the case law cited by the claimant did not support the requested relief. Therefore, on March 6, 1998, the ALJ denied the Motion to Reconsider, and this review followed.
Because the claimant failed to appeal our order of September 9, 1997, it is the “final” order on the disputed issue, in the absence of an order reopening the issue as provided by § 8-43-303, C.R.S. 1997. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Accordingly, we construe the claimant’s “Motion to Reconsider” as a petition to reopen.
Under § 8-43-303, an ALJ may reopen an issue if the ALJ concludes that a basis for a prior decision was an error or mistake. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926). In considering whether to reopen based on mistake or error, the ALJ must determine “whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening the case.”Travelers Insurance Co., Industrial Commission, 646 P.2d 399
(Colo.App. 1981).
The ALJ’s reopening authority is permissive, and therefore, we may not interfere with the ALJ’s refusal to reopen an issue in the absence of a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). The standard on review is whether the ALJ’s order “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). An ALJ does not commit an abuse of discretion if he denies a petition to reopen where the evidence indicates that the error or mistake presents a question which could have been raised by direct appeal. Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 683 (1971).
The claimant contends that Public Service Corp. v. Berkenkotter, supra, stands for the proposition that disability benefits may be awarded at a rate greater than the maximum disability rate in effect at the time of the original injury. The claimant argues that the ALJ’s April 18 order is inconsistent wit Berkenkotter, and therefore, the ALJ erred in refusing to award temporary total disability benefits up to the maximum rate in effect on May 4, 1995. We disagree.
Public Service Corp. v. Berkenkotter, supra, involved a 1981 industrial injury. At the time of the injury, the claimant’s average weekly wage was $458, resulting in a temporary total disability rate of $261.80, the maximum temporary disability rate in 1981. The claimant became permanently and totally disabled in 1994 at which time his average weekly wage was $740.40. Exercising his discretion under § 8-42-103(3), C.R.S. 1997, another ALJ recalculated the claimant’s average weekly wage based upon the claimant’s higher earnings in 1994. The ALJ also awarded permanent total disability benefits at the rate of $442.61 per week, which was the maximum permanent total disability rate in 1994.
As the claimant concedes, Berkenkotter is not precedent. See
C.A.R. 35(f) (published cases of the Court of Appeals must be followed). Therefore, Berkenkotter is not dispositive of this case.
Furthermore, Berkenkotter did not address the issue presented in this claim. To the contrary, there was no argument i Berkenkotter concerning the maximum disability rate applicable to the claim. In fact, in affirming the award in that case, we expressly noted that the respondents did not dispute the ALJ’s actual calculation of the average weekly wage or the “resulting disability rate.” Berkenkotter v. Public Service Company of Colorado, W.C. No. 3-644-433, (April 18, 1996). Rather, the sole issue in Berkenkotter was whether the ALJ abused his discretion in recalculating the claimant’s average weekly wage based upon the claimant’s higher earnings in 1994. Therefore, we cannot say the ALJ here abused his discretion in failing to find Berkenkotter
“persuasive” authority that the claimant is entitled to benefits based on the maximum disability rate at the time of the disability, rather than the maximum rate at the time of the injury.
Moreover, in affirming the ALJ’s April 1997 order, we expressly rejected the claimant’s argument that, because an ALJ may award benefits based upon the average weekly wage at the time of a subsequent disability, the ALJ may necessarily award benefits based upon the maximum benefit rate in effect at the time of the subsequent disability. The claimant’s further arguments do not persuade us to depart from the conclusions stated in our order of September 9, 1997.
We also note that Berkenkotter was decided prior to September 9, 1997. Consequently, the claimant could have presented his arguments on a direct appeal from our order. Because the claimant did not, the ALJ could reasonably infer that the claimant failed to establish a mistake of law which justified reopening the claim See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765
(1967) (ALJ not compelled to reopen claim if mistake of law might have been averted by the exercise of due diligence in the prior proceedings).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 26, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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 July 20, 1998 to the following parties:
Jeffrey Pubanz, 1597 E. 10th St., Craig, CO 81625
Colorado State Department of Law, Public Defender, 1525 Sherman St., 5th Flr., Denver, CO 80203
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
J. Keith Killian, Esq. Joanna C. Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
Eliot Wiener, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________