W.C. No. 4-248-731Industrial Claim Appeals Office.
February 10, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied and dismissed his petition to reopen on the grounds of error or mistake. We affirm.
In 1994, the claimant suffered an admitted injury. The claim was closed pursuant to the filing of an uncontested Final Admission of Liability which terminated temporary disability benefits effective January 19, 1996, the date of maximum medical improvement (MMI).
The claimant’s condition subsequently worsened. In November 1996, the claimant petitioned to reopen the claim. In an order dated July 2, 1998, ALJ Stuber reopened the claim based on a worsened condition and awarded the claimant permanent partial disability and future medical benefits. On April 13, 1999, we affirmed the order of ALJ Stuber. No appeal was taken.
In June 1999, the claimant requested temporary disability benefits from October 2, 1996 to September 23, 1997. The ALJ determined the issue of temporary disability benefits was within the ambit of the claimant’s November 1996 petition to reopen, and awarded temporary disability benefits. On review, we concluded the issue of temporary disability was closed, and that the claimant was precluded from receiving further temporary disability benefits in the absence of an order reopening the claim. Consequently, we set aside the award of temporary disability benefits.
Thereafter, the claimant filed another petition to reopen which alleged an “error or mistake” by the claimant’s counsel in failing to litigate the issue of temporary disability benefits prior to July 1998. Another ALJ determined the claimant failed to prove any mistake or error which justified reopening the claim. Consequently, the petition to reopen was denied. On review, we set aside the order and remanded the matter for an evidentiary hearing on the petition to reopen.
An evidentiary hearing was conducted on May 27, 2003. Claimant’s counsel testified that prior to July 1998, he and respondents’ counsel of record reached a compromise agreement in which the respondents agreed to provide additional medical benefits and a change of physician. The issue of whether the claimant’s condition had worsened was reserved. Claimant’s counsel also stated that the issue of temporary disability was not discussed because he believed the respondents had agreed to reinstate temporary disability benefits if the claimant obtained an order reopening the claim and the applicable law provided an automatic reinstatement of temporary disability benefits under these circumstances.
The ALJ determined there was no mistake or error which warranted reopening the claim to achieve a just result. Therefore, the ALJ denied the petition to reopen.
On review, the claimant contends the ALJ correctly stated the applicable legal standard, but failed to properly apply the standard in denying the petition to reopen. We disagree.
As stated by the ALJ, § 8-43-303(1)(a), C.R.S. 2003, allows an ALJ to reopen a claim on the grounds of error, or mistake of law or fact Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177
(Colo.App. 1996). In determining whether to reopen the claim due to “mistake or error,” the ALJ is required to determine whether or not a mistake or error was made, and if so, whether it was the type of mistake which justifies reopening the claim. Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981). Where the ALJ finds the existence of an “error or mistake,” the ALJ may consider whether the mistake could have been avoided by the exercise of due diligence. See Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984). The ALJ may also consider other matters, including whether or not perpetuating the mistake circumvents the objectives of the Workers’ Compensation Act.
Here, the ALJ recognized that the rationale for reopening based on mistake is that the goal of achieving a just result overrides the litigants’ interest in obtaining a final resolution. Koch Industries v. Pena, 910 P.2d 77 (Colo.App. 1995). Moreover, the ALJ found that claimant’s counsel had an “honestly held impression or assumption that the issue of temporary disability benefits was so obvious that it did not need to be discussed by the attorneys.” (Finding of Fact 23). However, in determining that the mistake was not the type that warranted reopening the claim, the ALJ noted that the mistake was not based on any action or statement by the respondents, but was solely based on the assumption by claimant’s counsel that temporary disability benefits were virtually automatic upon a reopening. Contrary to the claimant’s contention, this finding does not show that the ALJ erroneously assumed the alleged mistake must be one that was mutually shared by the respondents. The ALJ also determined that the erroneous assumption was unreasonable given claimant’s counsel’s receipt of a letter dated July 8, 1998, in which respondents’ counsel questioned the respondents’ liability for additional temporary disability benefits.
The claimant contends the ALJ erroneously relied on the July 8 letter because it was issued after the July 2 order of ALJ Stuber. However, the July 8 letter is some evidence that the claimant knew or should have known for almost a year before his application for hearing on the issue of temporary disability benefits that the respondents did not concede liability for additional temporary disability benefits.
The ALJ also found the mistake by claimant’s counsel could have been avoided by the exercise of due diligence, either by asking respondents’ counsel if liability for temporary disability benefits was admitted, or endorsing the issue of temporary disability on an application for hearing. Consequently, the ALJ’s findings reflect appropriate consideration and application of the relevant factors in determining whether to reopen the claim.
Moreover, the ALJ’s findings are supported by substantial evidence and plausible inferences drawn from the record, and therefore must be upheld Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). We recognize that the ALJ’s order results in a hardship on the claimant. However, the statute affords the ALJ wide discretion in determining whether to reopen a claim and we may not interfere with the ALJ’s order unless it constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is not supported by the record or is contrary to the law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994). Under the circumstances here, we are not persuaded that the ALJ abused her discretion in failing to find that a just result required a reopening of the claim to correct the mistake.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 11, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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 February 10, 2004 to the following parties:
James Weis, 19533 Murphy Rd., Peyton, CO 80831
Stuart Niesen, Litton Data Systems, 1840 Century Park East, Los Angeles, CA 90067-2199
Continental Casualty Company, c/o Mary Koch, CNA Insurance, P. O. Box 17369 T.A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
BY: A. Hurtado