W.C. No. 4-266-796Industrial Claim Appeals Office.
February 9, 2000
FINAL ORDER
The respondents seek review of an order of former Administrative Law Judge Wells (ALJ) which reopened the claim and awarded additional permanent partial disability benefits. The respondents contend the ALJ abused his discretion in reopening the claim. We disagree and, therefore, affirm.
In 1995, the claimant suffered a compensable back injury. Dr. Morgan rated the claimant’s impairment as 16 percent of the whole person and apportioned 1.6 percent of the impairment to a preexisting degenerative disc disease. On January 11, 1996, the respondents filed a Final Admission of Liability which admitted for permanent partial disability benefits based on 14.4 percent whole person impairment. The claimant objected.
In May 1996, the claimant filed an application for hearing on the issues of permanent total disability and future medical benefits. Based upon the evidence presented at a hearing on June 30, 1997, ALJ Stuber entered an order dated August 12, 1997, which awarded future medical benefits and denied permanent total disability benefits. No appeal was taken from the order.
On December 3, 1996, the supreme court announced Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996), which holds that under former § 8-42-104(2), C.R.S. (1996 Cum. Supp) [amended in 1999 for injuries occurring on or after July 1, 1999], apportionment of preexisting, nonindustrial medical impairment is not appropriate unless the preexisting impairment is disabling at the time of the subsequent industrial injury.
On August 26, 1998, the claimant petitioned to reopen the claim on the grounds of error or mistake. Relying on Askew v. Industrial Claim Appeals Office, supra, the claimant argued that Dr. Morgan erroneously apportioned permanent partial disability benefits.
At a hearing before the ALJ, the respondents conceded that the claimant’s preexisting degenerative disc disease was not disabling at the time of the industrial injury. Therefore, based on Askew, the ALJ determined the claimant established a mistake of law in Dr. Morgan’s apportionment and ordered the respondents to pay additional permanent partial disability benefits based on 1.6 percent permanent medical impairment. The respondents timely appealed.
On review the respondents contend the ALJ erred in reopening the claim. The respondents argue that the claimant failed to establish a mistake of law which justifies reopening the claim. In support, the respondents contend the claimant had notice of th Askew decision prior to the 1997 hearing before ALJ Stuber but, nevertheless, allowed the issue of permanent partial disability to be closed by ALJ Stuber’s order and took no action until August 1998. The respondents contend that under these circumstances the claimant failed to exercise due diligence to cure the mistake.
Under § 8-43-303(1)(a), C.R.S. 1999, an ALJ may reopen any award on the grounds of error or mistake of law or fact. State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653 (1926); Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). Where the issue is one of mistake, an ALJ is required to determine “whether a mistake was made, and if so, whether it was the type of mistake which justifies reopening a case.” Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981).
Reopening due to “mistake” includes a “mistake of law.” Ward v. Azotea Contractors, 748 P.2d 338 (Colo. 1987). A mistake of law justifies reopening a claim if the original award is inconsistent with a subsequent judicial interpretation of controlling statutory provisions. Renz v. Larimer County School District Poudre R-1, supra; Exeter Drilling v. Industrial Claim Appeals Office, 801 P.2d 20 (Colo.App. 1990).
In determining whether to reopen a claim on the grounds of 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). However, the failure to exercise procedural or appellate rights is not fatal, and is only one factor to be considered by the ALJ Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). The ALJ may also consider other matters including whether or not perpetuating a mistake of law unreasonably circumvents the objectives of the Act. Indeed, 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, a claim may be reopened due to a mistake of law regardless of how the mistaken prior award became final. Renz v. Larimer County School District Poudre R-1, 924 P.2d at 1181. To the contrary, “any mistake” may justify reopening where the ALJ determines that the prior award was wrong. See State Compensation Insurance Fund v. Industrial Commission, supra.
The power to reopen is “permissive,” and therefore, 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 unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
As found by the ALJ, the claimant’s 1996 application for hearing was filed prior to the court’s announcement in Askew.
It is true the claimant could have moved to add the issue of permanent partial disability to the issues for adjudication before ALJ Stuber, and that would have prevented the mistake of law. However, it is undisputed that Dr. Morgan’s apportionment of permanent disability is inconsistent with Askew. Weighing the competing equities, the ALJ determined that the claimant’s failure to add permanent partial disability to the issues endorsed for hearing in 1997, or request ALJ Stuber to reserve the issue for future determination did not outweigh the unfairness of depriving the claimant of permanent disability benefits to which he is entitled under the law. (Tr. p. 10); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Under the totality of circumstances, the ALJ’s determination does not exceed the bounds of reason, and therefore, there was no abuse of discretion Plotner v. Westran, Inc., W.C. No. 3-108-724 (March 19, 1998). The respondents remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 10, 1998, 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 February 9, 2000
to the following parties:
Jerry Wright, 4810 S. Carefree Cir., Colorado Springs, CO 80917
McDonnell Douglas, P.O. Box 516, St. Louis, MO 63166-0516
Dana Spohn, Industrial Indemnity, 1471 Shoreline Dr., #200, Boise, ID 83702
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Pendroy