W.C. No. 4-141-542Industrial Claim Appeals Office.
September 14, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his petition to reopen a settlement agreement on the grounds of mutual mistake of fact. We affirm.
On June 20, 1992, the claimant suffered an admitted back injury during an automobile accident. An MRI of the lumbar spine performed in December 1992 showed degenerative changes but no herniated disc. Accordingly, Dr. Herrington diagnosed a soft tissue injury and told the claimant it would heal with time. On September 1, 1993, the claimant was placed at maximum medical improvement.
Thereafter, the claimant entered into a full and final settlement in which he waived the right to reopen the claim. The settlement was approved by the Division of Administrative Hearings on November 23, 1994.
In February 2000, the claimant suffered a significant worsening of his back condition, when his legs suddenly went numb and he fell to the floor. An MRI revealed a herniated disc at L4-5 as well as additional degenerative changes. Dr. Danylchuk performed emergency surgery to repair the disc herniation.
Dr. Danylchuk opined it was “more likely than not” that the herniated disc was caused by the industrial injury. Relying on Dr. Danylchuk’s opinions, the claimant filed a petition to set aside the settlement. The claimant alleged Dr. Herrington’s diagnosis of a soft tissue injury was incorrect and, therefore, the parties were mutually mistaken about the nature and severity of the injury at the time of the settlement. Consequently, the claimant requested an order reopening the claim.
The ALJ found, inter alia, that the claimant failed to sustain his burden to prove a causal connection between the herniated disc and the industrial injury. Therefore, the ALJ denied the petition to reopen.
On review the claimant renews his contention that Dr. Herrington misdiagnosed the industrial injury as a lumbar strain instead of a bone fracture. Consequently, the claimant contends the settlement was based upon a mutual mistake of fact concerning the nature of the injury.
Initially, we note that the claimant’s Designation of Record includes the “entire files maintained by the Division of Workers’ Compensation.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restrict our review to the record made at the hearing.
Section 8-43-303(1), C.R.S. 2000, provides that a settlement may be reopened on the basis of a mutual mistake of material fact. The alleged “mistake” must pertain to a past or present fact such as the nature, extent and severity of the industrial injury. Maryland Casualty v. Buckeye Gas Products Co., 797 P.2d 11 (Colo. 1990); Gleason v, Guzman, 623 P.2d 378 (Colo. 1981). For a fact to be “material,” it must relate to a “basic assumption” on which the agreement was made. See Davis v. Cutler’s Meat Factory, W.C. No. 3-063-709 (August 29, 1996).
The existence of a mutual mistake of material fact is one of fact for the ALJ. See Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. No. 1993). Thus, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, the record is subject to conflicting inferences concerning the cause of the claimant’s herniated disc and need for surgery in February 2000. The emergency room report following the industrial accident stated that claimant was diagnosed with a left shoulder contusion and cervical sprain and that x-rays were negative for a fracture. On May 4, 1993, Dr. Kelley reported that x-rays of the cervical spine, lumbar spine and ribs were within normal limits and EMG studies were negative. Dr. Kelley also reported that the only abnormality shown on x-rays of the lumbar spine was a little “lipping,” and added that the claimant did not complain of “percussion to this area.” Consequently, Dr. Kelley opined that the claimants’ symptoms of back pain and weakness were “completely out of proportion to the amount of physical findings.” A subsequent bone scan completed at Dr. Kelley’s recommendation showed “normal activity” of the lumbosacral spine.
Dr. Danylchuk opined that even though the 1992 MRI was negative for any disc herniation, the industrial injury could have initiated the conditions which ultimately produced the herniated disc because an MRI “may or may not be accurate” in the early years after a traumatic impact on the spine. (Tr. p. 11). However, Dr. Danychuk admitted he had not reviewed the 1992 MRI study of the claimant’s lumbar spine and couldn’t comment on whether the degenerative condition revealed on the 2000 MRI reflected a change in condition. (Tr. p. 9).
The record also contains evidence the claimant suffered from pre-existing low back problems. In particular, the claimant was hospitalized for 6 days in 1990 for back pain thought to be related to a 1964 spinal injury.
Within his sole prerogative the ALJ resolved the conflict in favor of the respondents. In view of the 8 year delay between the industrial injury and the claimant’s need for surgery, together with the lack of objective findings of a disc herniation during treatment of the industrial injury and evidence of the claimant’s pre-existing history of low back problems, the ALJ could, and did, reasonably infer the claimant failed to prove a causal connection between the industrial injury and the herniated disc in February 2000. See Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999) (proof of causation is an issue of fact for ALJ); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ); Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances).
Moreover, because the ALJ found the herniated disc discovered in 2000 was not medically related to the industrial injury, the ALJ necessarily found that there could be no mutual mistake about a “material fact.” Put another way, there was no mutual mistake concerning the nature of the claimant’s injury-related condition and its potential for subsequent worsening. The claimant failed to prove the worsening which occurred had any connection to the industrial injury. Under these circumstances, substantial evidence supports the ALJ’s findings that the claimant failed to prove a mutual mistake of material fact.
In light of this decisions, we need not consider the ALJ’s alternative holding.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 23, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 14, 2001 to the following parties:
Joseph Salazar, Jr., 3005 Baystate Ave., Apt. 130, Pueblo, CO 81005
R R Heating and Air Conditioning, 711 W. 8th St., Pueblo, CO 81003-2321
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Steven U. Mullens, Esq. and Andrew Gorgey, Esq., 105 E. Moreno Ave., #101, Colorado Springs, CO 80903 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy