W.C. No. 4-595-889.Industrial Claim Appeals Office.
August 2, 2005.
FINAL ORDER
The pro se claimant seeks review of the summary judgment order issued by Administrative Law Judge Jones (ALJ Jones), which denied the claimant’s petition to reopen. We affirm.
The matter originally heard by ALJ Harr on June 3, 2004. Finding inconsistencies between the claimant’s testimony and the testimony of the respondents’ lay and expert witnesses, ALJ Harr determined the claimant failed to prove she suffered a work-related neck injury on September 25, 2002, while pulling a weed. In particular, ALJ Harr found the claimant did not report any work-related injury when first examined by Dr. Pettine, the claimant did not seek any medical treatment for the alleged injury between September 2002 and March 9, 2004 and the claimant did not report the alleged injury to the employer until November 8, 2003, when she filed a claim for workers’ compensation benefits. Therefore, on July 6, 2004, ALJ Harr denied and dismissed the claim for workers’ compensation benefits.
On review of the July 6 order we refused to consider the factual assertions raised by the claimant for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988). Further, we concluded the claimant failed to establish grounds for appellate relief. Therefore, on December 17, 2004, we affirmed the order of ALJ Harr.
The claimant did not appeal our order. Instead, the claimant petitioned to reopen the claim based on mistake or error.
The respondents moved for summary judgment denying the petition to reopen. The respondent argued the claimant failed to identify any mistake or error by ALJ Harr which would justify reopening the claim.
In response to the motion for summary judgment, the claimant argued the employer’s credibility was invalidated by evidence they failed to correctly report the claimant’s income to the Internal Revenue Service. The claimant also argued the respondents failed to respond to interrogatories. Further, the claimant argued that she was mistakenly diagnosed with a degenerative disc disease, when in fact MRI results reveal a “dislocated vertebra,” and the mistake was corrected by Dr. Pettine in a report dated August 27, 2004, which was not considered by ALJ Harr. Finally, the claimant alleged she was excused from timely reporting the injury because the employer failed post the reporting notice required by § 8-43-102(1)(b), C.R.S. 2004.
ALJ Jones determined there were no disputed issues of material fact. ALJ Jones also found the record failed to establish any mistake or error “sufficient” to reopen the claim. Therefore, ALJ Jones granted the motion for summary judgment, dismissed the petition to reopen and vacated the hearing scheduled for April 22, 2005.
On review of ALJ Jone’s order the claimant restates her version of the circumstances surrounding the industrial injury and argues that medical evidence which became available after the hearing before ALJ Harr casts doubt on his factual determinations. In addition, the claimant renews her contention the respondents failed to post the notice required by § 8-43-102(1)(b). Further, the claimant alleges ALJ Harr erroneously relied on the report of Dr. Snodgrass instead of Dr. Pettine’s August 27 opinion that the neck injury was “work-related.” We perceive no basis to disturb the ALJ’s order.
Under § 8-43-303(1)(a), C.R.S. 2004, 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 claimant alleges a mistake the 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). Because the ALJ’s authority is discretionary we may not interfere with the ALJ’s decision to deny a petition to reopen unless the ALJ’s rule 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).
Further, an ALJ may enter summary judgment on a petition to reopen if there are no disputed issues of material fact and the moving party demonstrates it is entitled to judgment as a matter of law. See C.R.C.P. 56; Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers’ Compensation Act); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). In ruling on a motion for summary judgment all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts.
However, Deterts v. Times Publishing Co., 38 Colo. App. 48, 522 P.2d 1033 (1976), is not authority in support of the claimant’s assertion that ALJ Harr was required to resolve all reasonable doubts in favor of the claimant. That principle was subsequently disapproved by the court in City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Moreover, § 8-43-201 C.R.S. 2004, provides that the “facts in a workers’ compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer.”
We agree with ALJ Jones implicit determination that the evidence offered by the claimant in support of her petition to reopen does not establish a mistake by ALJ Harr, and therefore, as a matter of law, the respondents are entitled to summary judgment dismissing the claim. For example, in his report dated September 23, 2004, Dr. Snodgrass wrote:
“I did state, however, it would be difficult to definitively prove that the subluxation of the C5-C6 occurred at the moment that [the claimant] pulled a weed, and I stated that the only way to absolutely definitely determine that would be to have had an MRI both pre and post the event, but that theoretically it could be associated.”
However, there is no finding or assertion that there is an MRI study of the claimant’s condition prior to the alleged industrial accident. Consequently, the opinions of Dr. Snodgrass, do not support a finding ALJ Harr erroneously found the claimant failed proved the subluxation is work-related.
Furthermore, medical evidence is not dispositive of causation Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Therefore, Dr. Pettine’s August 27, 2004 opinion hat the claimant’s cervical problems were the result of a “work-related injury,” did not require ALJ Jones to find ALJ Harr’s finding to the contrary was wrong.
The claimant’s further arguments have been considered and do not alter our conclusions. Even if ALJ Jones assumed, arguendo
that ALJ Harr erroneously found Dr. Clemens was the claimant’s personal physician, or failed to give adequate probative weight to evidence the claimant was unaware the employer had workers’ compensation insurance, we cannot say ALJ Jones was required to find these errors resulted in ALJ Harr’s incorrect evaluation of the evidence concerning the cause of the claimant’s neck condition. Thus, ALJ Jones could reasonably infer that the errors, if any, did not justify reopening the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 19, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Joanne M. Young, Joanne M. Young, George Lundeen, Loveland, CO, Legal Department, Pinnacol Assurance — Interagency Mail, T. Paul Krueger, II, Esq. and Douglas Stratton, Esq., Fort Collins, CO, (For Respondents).