W.C. No. 4-647-601.Industrial Claim Appeals Office.
December 30, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 12, 2009, that denied and dismissed the claimant’s petition to reopen. We affirm.
The claimant suffered work injuries on February 26, 2005 involving his right shoulder and neck. The claimant reached maximum medical improvement (MMI) and the respondents filed a final admission of liability (FAL) on May 18, 2007. The FAL was based upon Dr. Quick’s finding of scheduled impairment of 22 percent of the right upper extremity and 24 percent whole person for the claimant’s cervical spine. The parties entered into a stipulation concerning permanent disability benefits. The claimant agreed not to object to the new August 28, 2007 FAL and the claim closed subject to the reopening provisions of the statute.
On January 14, 2008 the claimant filed a petition to reopen based upon a change in medical condition. In support of his petition to reopen the claimant underwent a vocational evaluation by an expert who opined that the claimant was permanently and totally disabled. The vocational expert stated that there was a noticeable worsening in the claimant’s condition, which led to additional work restrictions imposed by Dr. Quick in October 2007. Dr. Scott opined that the claimant did not suffer an objective worsening of his medical condition since being placed at MMI in 2007. ALJ Cannici in an order dated July 24, 2008, determined that the claimant had failed to establish that he suffered a worsening of his medical condition after he reached MMI. ALJ Cannici credited the testimony of Dr. Quick who explained that although the claimant’s subjective complaints
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changed during the course of his maintenance care, there was no objective medical evidence reflecting a change in the claimant’s condition.
The claimant, after ALJ Cannici entered his July 24, 2008 order, filed another petition to reopen dated September 19, 2008 that is the subject of the present order entered by ALJ Walsh. The claimant alleged that his medical condition changed as a result of a left knee injury, which he attributed to dizziness and “blackout spells” resulting from his prior neck surgery. ALJ Walsh found the more credible and persuasive medical evidence negated any causal relationship between the dizziness or syncopal episodes and the work-related neck injury. The claimant alternatively alleged he should be entitled to reopen his claim based upon his mistaken belief that he would be able to continue working at the time of the August 2007 FAL. ALJ Walsh denied the claimant’s petition to reopen. On appeal, the claimant argues that the ALJ erred in failing to consider whether the claimant showed that he was mistaken in his belief that he could return to work as of the date of the FAL, and such mistake warranted a reopening.
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). 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). The party seeking reopening bears “the burden of proof as to any issues sought to be reopened.” Section 8-43-303(4), C.R.S. 2009.
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). We are not persuaded that ALJ Walsh abused his discretion in denying the claimant’s petition to reopen.
When considering the sufficiency of the evidence, we must uphold the ALJ’s factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). We specifically note that we may not interfere with the ALJ’s decision to credit the testimony
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of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000).
Here, the claimant urges that he was mistaken in his belief that he could return to work as of the date of the August 2007 FAL. In determining that there was no mistake that would entitle the claimant to reopen the claim ALJ Walsh made, with record support, the following findings. The claimant’s MMI status had never been revoked and he had been evaluated for purposes of a claim for permanent total disability in connection with his first petition to reopen. The vocational assessment and employability report of the claimant’s own expert was prepared prior to the previous hearing on the claimant’s petition to reopen claim. The claimant’s expert opined that the claimant was permanently and totally disabled. ALJ Walsh found the claimant’s testimony regarding mistake was simply not persuasive.
ALJ Walsh found that at the hearing before ALJ Cannici the claimant had argued that his subjective symptoms had worsened, and that additional work restrictions had been imposed, but his prior petition to reopen based upon an alleged worsening of medical condition had been denied. ALJ Walsh noted that at the hearing before him, the claimant, based upon an alleged mistake of fact, now sought the very same relief, a determination of permanent total disability, even though there had been no change in his condition. ALJ Walsh determined that the claimant had failed to establish a mistake that warrants reopening. In our opinion, ALJ Walsh was not compelled to reopen the claim based on the claimant’s assertion that he was mistaken concerning whether or not he could return to work at the time the FAL was filed.
A claim may be reopened based on mistake whenever subsequent evidence casts doubt upon the validity of a factual determination which formed the basis of an award or denial of benefits Renz v. Larimer County School District Poudre R-1, supra; Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo. App. 1989). However, the ALJ has wide discretion to determine whether a mistake has occurred, and if so, whether it is the type of mistake which justifies reopening. Travelers Insurance Co. v. Industrial Commission, supra. When determining whether a particular mistake justifies reopening, the ALJ may consider whether it is the type of mistake which could have been avoided by the timely exercise of available remedies. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, 694 P.2d 873 (Colo. App. 1984).
Here, there is evidence that there had been no change in the claimant’s overall condition. It must be remembered that the claimant sought at both the hearing before ALJ Cannici and ALJ Walsh to establish that his petition to reopen should be granted based upon an alleged change (worsening) of medical condition. Both of the ALJs
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denied the petition to reopen based on a worsening of condition. Further, here the claimant has not even challenged ALJ Walsh’s most recent denial of his petition to reopen based upon worsening of condition.
As noted by the ALJ the present case may be viewed as merely a change of opinion concerning the probable consequences of physical restrictions on the claimant’s ability to obtain employment on the open labor market. The ALJ could logically find that this change of opinion did not amount to the type of mistake that would justify reopening. See Fisher v. Wal-Mart Stores, Inc., W. C. No. 4-247-158 (August 20, 1998). In our view the ALJ was not compelled to reopen the claim based merely upon the inability of one of the parties to foretell the future. 8 Larson, Workers’ Compensation Law, § 131.05[2][b] at 131-55. Therefore under the totality of circumstances here, in our view it cannot be said that the ALJ abused his discretion as a matter of law in refusing to reopen. Renz v. Larimer County School District Poudre R-1, supra. Because we conclude that the ALJ did not abuse his discretion in denying the petition to reopen it is unnecessary to address the remaining issue of whether claim preclusion applies in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 12, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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RAMON J DAVIS, COLORADO SPRINGS, CO, (Claimant).
ROCKY MOUNTAIN MATERIALS ASPHALT, INC., Attn: MR TERRY BURCH, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
FRANKLIN D AZAR ASSCIATES, PC, Attn: JOHN M CONNELL, ESQ., AURORA, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: JOHN SANDBERG, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: JASON TRUJILLO, DENVER, CO, (Other Party).
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