W.C. No. 4-744-278.Industrial Claim Appeals Office.
September 25, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated May 14, 2009, that granted the respondents’ petition to reopen, determined the respondents had established by clear and convincing evidence that the Division-sponsored independent medical examination (DIME) rating was incorrect and ordered the claimant to repay the respondents $20,152.72 for overpaid permanent partial disability (PPD) benefits. We affirm.
The claimant sustained a lumbar spine industrial injury on May 4, 2007. The claimant underwent a DIME examination and was given a seven percent whole person impairment rating for the lumbar spine. The respondents filed a Final Admission of Liability (FAL) for seven percent impairment for the lumbar spine based upon the report of the DIME physician. The respondents subsequently learned that the claimant had been given a prior seven percent whole person impairment rating for a 2000 lumbar spine injury work related injury. The respondents filed a petition to reopen on the basis of mistake or fraud.
The ALJ found that the respondents had failed to sustain their burden of proof to establish that the petition to reopen based on fraud should be granted. However, the ALJ granted the petition to reopen on the basis of mistake because the DIME physician had not been provided with and did not consider the 2000 impairment rating. The ALJ concluded that the DIME physician’s opinion was most probably incorrect and determined that the correct medical impairment for the claimant’s lumbar spine was zero percent. The claimant brings this appeal.
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Under § 8-43-303(1)(a), C.R.S. 2009, 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). 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).
I.
The claimant first argues that the December 10, 2008 FAL foreclosed the issues endorsed by the respondents in their application for hearing. We disagree.
In our view Berg v. Industrial Claim Appeals Office 128 P.3d 270 Colo. App. 2005) is controlling. In Berg the court determined that an uncontested finding of maximum medical improvement by the DIME physician could be reopened based on a mistake of fact. We note that the argument advanced by the claimant here, is similar to an argument made by the respondents i Berg. In Berg the respondents argued that the claimant was, in effect, challenging the FAL and the DIME physician’s determination of maximum medical improvement, but that he had not followed the statutory requirements. In Berg the Panel accepted the respondents’ argument and therefore determined that claimant was precluded from circumventing the conclusive effect of the DIME by seeking to reopen the MMI. However, the court of appeals reversed the Panel and concluded that because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination of MMI. The court noted in Berg that if a party files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it. Therefore, in our view, the December 10, 2008 FAL did not foreclose reopening.
The claimant next contends that the issue of overcoming the DIME was not properly endorsed. The claimant argues that the only issues endorsed by the respondent and listed on the Case Information Sheet were petition to reopen and overpayment. We disagree that the ALJ erred in considering the issue of overcoming the DIME.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2009 IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). In our view the listing of the issues of petition to reopen a claim closed by a FAL based upon a report of the
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DIME physician plausibly includes overcoming the opinion of the DIME physician by clear and convincing evidence. There was no argument made by the claimant at the time of the hearing or in her position statement that she had not received adequate notice of both the factual and legal basis of the respondents’ claim for reopening. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo. App. 1990). The claimant did not request a continuance and we are not persuaded that she was denied a reasonable opportunity to represent evidence and argument in support of her position. Therefore we do not view the ALJ’s consideration of the question of whether the respondents had overcome the opinion of the DIME physician as an abuse of discretion.
Moreover, the claimant’s argument that the issue of overcoming the DIME was not properly endorsed as an issue appears to be raised for the first time on appeal. Although the claimant contends that she raised it at the hearing she has not directed our attention to any specific portion of the transcript and we are unable to find it in the transcript. Tr. at 12. In addition the claimant did not raise this issue in her position statement filed after the hearing. Therefore, because the claimant failed to raise this argument before ALJ Jones, it has not been preserved for our review Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
II.
The claimant next contends that the ALJ erred in reopening the claim because the respondents did not prove a type of mistake that would support a reopening. We disagree.
A mistake within the purview of the reopening statute includes mistakes of fact or law. State Compensation Insurance Fund v. Industrial Commission, supra; Gregorich v. Industrial Commission, 117 Colo. 423, 188 P.2d 886 (Colo. 1948). Here the ALJ made the following findings of fact with record support. The DIME physician received from the claimant a history of low back pain. She did not remember the circumstances, but did remember low back pain discomfort in 2000. Exhibit 5 at 3. In the record review by the DIME physician it was noted that the claimant states that she had not injured her low back in the last ten years before the 2007 injury. Exhibit 5 at 3. The DIME physician opined that the claimant suffered a seven percent impairment based on injury to her lumbar spine. Exhibit 5 at 7. The respondents filed an admission based upon the DIME physician’s opinions. Exhibit C. On December 5, 2008, the respondents filed a petition to reopen seeking to reopen on the basis of mistake or fraud. Exhibit B. In our view this
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constitutes substantial evidence supporting the ALJ’s determination to reopen. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009.
We note that the ALJ also found that in 2007, after paying the admitted PPD benefits, the respondents discovered that the claimant had a prior workers’ compensation injury in February 2000 for which she received PPD benefits based upon a seven percent whole person impairment rating for her lumbar spine. Counsel for the respondents made statements to this effect at the inception of the hearing, which of course does not constitute evidence. However, in our view the petition to reopen, attached medical reports and the record as a whole support the inference made by the ALJ that after the respondents discovered the existence of the prior workers’ compensation claim they filed a petition to reopen. Exhibit B.
The claimant further contends that the employer should have known of the claimant’s past workers’ compensation injury. The claimant contends that she repeatedly reported her past injury to all of her medical providers. Thus the claimant argues it cannot be concluded that the employer was fraudulently or even mistakenly prevented from obtaining information about the claimant’s 2000 injury. We disagree.
Here the ALJ in great detail reviewed the medical records from which a reasonable inference could be drawn that the claimant was not frank in her description of her past lumbar injury and workers’ compensation claim. The claimant reported to Dr. Watson in May 11, 2007 that she had a remote back injury and only reported a knee contusion regarding prior work related injuries. Exhibit 1 at 1. In June 16, 2007 the claimant reported to Dr. Graves that she had insidious onset of lumbar spinal pain, but denied having any trauma associated with her previous lumbar spinal pain and denied any previous work-related injuries. Exhibit 3 at 2. In addition there was the history given to the DIME physician noted above. In our view there was substantial evidence in the record to support a determination that the respondents were mistaken regarding the claimant’s prior workers’ compensation claim.
III.
The claimant contends that the respondents failed to meet their burden of overcoming the DIME physician’s report by clear and convincing evidence. We again disagree.
The DIME physician’s medical impairment rating is binding unless overcome by “clear and convincing evidence.” Section 8-42-107(8)(c), C.R.S. 2009; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). “Clear and convincing evidence” is evidence which proves that it is “highly probable” the DIME physician’s
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opinion is incorrect. Id. The question of whether the DIME physician’s rating has been overcome by “clear and convincing evidence” is a matter of fact for determination by the ALJ Id.
The standard of review is whether the ALJ’s findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. 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. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is “exceedingly narrow.” Id.
Here the ALJ compared the impairment rating report of Dr. Mayer done in 2000, which supported the FAL for the 2000 claim, with the impairment rating of the DIME physician supporting the FAL for the claim here. The ALJ noted with record support that the ratings were not drastically different. Exhibit G 5. The ALJ correctly noted that § 8-42-104(5)(a) C.R.S. 2009 generally provides that a prior medical impairment rating for the same body party shall be deducted from a subsequent injury to the same body part. The ALJ found that because the DIME physician had not been given information on the prior impairment rating the resulting failure to consider the 2000 impairment rating of the lumbar spine clearly led to a mistake. In our view there was ample support in the record for this determination. We further note that the ALJ’s determination is supported by § 8-43-303(1) C.R.S 2009 that provides that upon a prima facie showing that the claimant received overpayments, the award shall be reopened and repayment shall be ordered.
The claimant next argues that certain findings made by the ALJ in her Summary Order supports the claimant’s contention that the claim should not be reopened based on mistake. The claimant contends the ALJ’s order must be set aside because there is a conflict between findings contained in the ALJ’s Summary Order and findings of fact contained in the ALJ’s specific findings contained in the May 14, 2009 order here under review. We find no error.
Generally, it is the ALJ’s specific findings of fact and conclusions of law, not the Summary Order, which are the subject of our review. It is the ALJ’s order dated May 14, 2009 that was appealed to us. Because it is the May 14, 2009 Order which we review, any actual or perceived inconsistency between this order and the Summary Order is of no consequence. Gaskins v. Golden Automotive Group, LLC, W. C. No. 4-374-591 (August 06, 1999) see also, Reed v. Industrial Claim Appeals Office 13 P.3d 810 (Colo. App. 2000 (if there is a conflict between oral and written findings, it is the written order that controls).
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IT IS THEREFORE ORDERED that the ALJ’s order dated May 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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GREAT WEST LIFE ANNUITY, Attn: SUE COMEAU, GREENWOOD VILLAGE, CO, (Employer).
GALLAGHER BASSETT SERVICES, Attn: JEAN DOWNING, ENGLEWOOD, CO, (Insurer).
MARK A SIMON, Attn: MARK A SIMON ESQ, DENVER, CO, (For Claimant).
RITSEMA LYON, Attn: LYNN P LYON ESQ, DENVER, CO, (For Respondents).
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