Opinion
W.C. No. 4-638-377.
July 25, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated February 6, 2008, that reopened the claim, awarded temporary total disability (TTD) benefits and increased the computation of claimant's average weekly wage (AWW). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant developed bilateral carpal tunnel syndrome and the respondents admitted liability for the claimant's October 29, 2004 injury. The claimant was not physically able to perform her regular job at the employer after October 29, 2004. The claimant underwent various non-operative treatments for her carpal tunnel syndrome. Dr. McLaughlin placed the claimant at maximum medical improvement (MMI) on August 23, 2005 and assigned an impairment rating for the condition of her wrists. The respondents filed a Final Admission of Liability (FAL) on September 13, 2005 admitting for permanent partial disability (PPD), but not for any TTD benefits. The claimant resigned her position at the direction of her employer because she was not physically able to return to work. The respondents did not include the replacement value of the claimant's health insurance in the admitted AWW. The claimant did not object to the September 13, 2005 FAL. Dr. McLaughlin referred the claimant to Dr. Fox who saw the claimant on November 22, 2006 and recommended that she should undergo a right carpal tunnel release.
The ALJ determined the claimant had suffered a worsening of condition on November 22, 2006 that imposed additional physical restrictions on the claimant's ability to work and awarded her TTD benefits beginning on that date. The ALJ determined the respondents mistakenly failed to admit and pay for TTD benefits that were owed to the claimant for the period October 29, 2004 through August 22, 2005. Further, the claimant mistakenly believed that the PPD award she received by way of the FAL was compensation for lost wages. The ALJ determined that the claimant was entitled to reopen her claim based on mistake and awarded TTD benefits for the period October 29, 2004 through August 22, 2005. The ALJ reopened the claimant claim based on a worsening of the claimant's medical condition and awarded TTD benefits from November 22, 2006 and ongoing. The ALJ determined that a mistake of law occurred regarding the non-inclusion of the replacement value of the claimant's health, dental and vision insurance in the claimant's AWW. The ALJ allowed the claimant to reopen her claim regarding AWW and increased the AWW to include the replacement value of the health insurance.
We note initially that although the respondents have advanced several arguments the only relief requested is for an order denying the claimant's petition to reopen. Claims may be reopened on the grounds of error, a mistake, or change in condition. Section 8-43-303(1), C.R.S. 2007. The claimant here had the burden of proof in seeking to reopen a claim. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000). The reopening authority is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177 (Colo.App. 1996); see 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 respondents first contend that the ALJ erred by reopening the claim based on mistake of fact. The respondents argue that there is no evidence in the record to suggest a mistake of fact.
The ALJ found that a mistake of fact occurred because the claimant did not fully understand the nature of workers' compensation. The claimant contacted a human resource specialist from the corporate office of the employer and stated that she had not been compensated for her lost wages. The claimant was told by the specialist that she would contact the insurer. The claimant then received the September 13, 2005 FAL admitting for PPD, but not for any temporary disability. When the claimant received payment for PPD the claimant mistakenly understood that the payment was intended to compensate her for her lost wages, and not for permanent disability.
On this issue, the respondents first contend that the claimant had only testified that she "thought" she had told the human resource specialist, but was not sure what she had been told. The respondents, citing Upchurch v. Industrial Commission, 703 P.2d 628 (Colo.App. 1986), note that an award may not be based on speculation or conjecture and argue that this testimony is speculative testimony, which does not amount to substantial evidence.
We are not persuaded that the claimant's testimony relied upon by the ALJ here is so speculative that it is insufficient to support the ALJ's findings. In Upchurch v. Industrial Commission, the court concluded that innuendo and questioning of a claimant on cross-examination as to whether he had been consorting with a prostitute at time of injury was insufficient to support its finding that injuries arose because of personal deviation from duties. However, here there was direct testimony from the claimant that she did not object to the FAL because she did not realize what it was. Tr. at 44. The claimant testified she called the claims examiner for the respondents and was told that they did not owe her anything for back pay. Tr. at 102. The claimant testified she then called the employer because she still thought she was due some back pay. Tr. at 102. The claimant further testified that the person at the employer sympathized with her, called the claims adjuster, and then called her back and said she would be receiving her back pay. Tr. at 104, 107. The claimant thought that the admission was paying her for the back pay. Tr. at 104.
The claimant's testimony was weakened on cross-examination when she stated she was not sure if the employer representative told her she would be paid back pay and was not clear on whether the employer representative talked with the claims adjuster. Tr. at 105-106. However, we are not persuaded that as a matter of law the claimant's testimony was so speculative that it does not amount to substantial evidence. The respondents cite our order in Tkach v. City and County of Denver, W.C. 3-866-074 (June 30, 1989) for the proposition that the type of testimony in this case is merely speculative and does not amount to substantial evidence. However, the Colorado Court of Appeals set aside our order in Tkach because the panel had erred in substituting its finding on credibility and weight for that of the ALJ. See Tkach v. Industrial Claim Appeals Office, No. 89CA1177 (Colo.App. July 26, 1990) (not selected for publication) (ALJ properly inferred that paramedic was shot because the uniform he was wearing was mistaken for that of a police officer).
Here we must leave the weight to be given to such testimony to the ALJ as finder of fact. Piper v. Manville Products Corp., W.C. 3-745-406 (January 11, 1993); Tkach v. Industrial Claim Appeals Office, supra. The ALJ was persuaded by the claimant's testimony. In our opinion there was substantial evidence to support the ALJ's finding that the claimant mistakenly understood that the payment in the FAL was intended to compensate her for her lost wages, and not for her not permanent disability.
The respondents next contend that the claimant's ignorance of the procedures and rules does not afford relief because when she received the September 13, 2005 admission she was presumed to understand the workers' compensation law and bore the risk of understanding the admission and knowing how to proceed. We recognize that pro se litigants are presumed to have knowledge of the statute under which they seek benefits. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981). They are not entitled to any special treatment in the application of procedural rules, and they assume responsibility for the consequences of their mistakes. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980).
However, here the ALJ determined that the claimant did not fully understand "the function of workers' compensation." Findings of Fact, Conclusions of Law, and Order (Order) at 6, ¶ 22. We understand this to mean that the claimant entertained a misunderstanding concerning her substantive rights, and that misunderstanding rose to the level of a "mistake" or "error" which would justify reopening the claim. In our view, this determination is within the ALJ's discretion because determination of whether a mistake was made, and if so, whether it was the type of mistake, which justifies reopening a case, is to be made by the ALJ. Colorado Department of Agriculture v. Wayne, 179 Colo. 258, 499 P.2d 1188 (1972); Wallace v. Industrial Commission, 629 P.2d 1091 (Colo.App. 1981). We may interfere with that determination only if fraud or an abuse of discretion is shown. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Travelers Ins. Co. v. Industrial Commission, 646 P.2d 399 (Colo.App. 1981). There is no claim of fraud and we perceive no abuse of discretion.
II.
The respondents contend that the ALJ erred in concluding that a mistake of fact occurred because the respondents failed to admit for TTD benefits that were owed to the claimant for the period October 29, 2004 through August 23, 2005. The respondents, therefore, contend the ALJ erred in awarding TTD benefits for that period of time. Here, the ALJ found with record support that the claimant did not work for wages after October 29, 2004 because of her industrial condition and was placed at MMI on August 23, 2004. The respondents do not dispute the claimant's threshold entitlement to TTD for this period, but assert that because they had no obligation to initiate TTD benefits in the first place, an order reopening due to mistake must be reversed. We are not persuaded that the insurer was under no obligation.
In Colorado the courts have recognized a reasonable balance between the right of an insurance carrier to reject a non-compensable claim submitted by its insured and the obligation of such carrier to investigate and ultimately approve a valid claim. Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1275 (Colo. 1985). Here, the ALJ found that the insurer mistakenly failed to pay the claimant TTD benefits that were owed to the claimant for the period of October 29, 2004 through August 22, 2005. We again note that the decision to reopen proceedings lies solely in the discretion of the ALJ. Standard Metals Corp. v. Gallegos, 781 P.2d 142, 146 (Colo.App. 1989). We perceive no abuse of discretion.
III.
The respondents next contend that the ALJ erred in concluding that a mistake of law required reopening of the claim. The respondents argue that the ALJ erred by increasing the claimant's AWW. We disagree.
The FAL in question was filed on September 13, 2005. The respondents did not include the replacement value of the claimant's health insurance in their admitted AWW. At the time the September 13, 2005 FAL was filed the court of appeals had addressed this issue in Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003). The FAL appears to be consistent with Midboe.
However, later in Ray v. Industrial Claim Appeals Office, 124 P.3d 891 (Colo.App. 2005), the court of appeals held in Ray that a claimant's average weekly wage must include the amount of the claimant's cost of continuing an employer's group health insurance plan regardless of whether the claimant actually purchased the insurance. Ray, 124 P.3d at 894-95. The FAL appears to be inconsistent with Ray. The respondents point out that the opinion in Ray was issued on July 14, 2005 and before the September 13, 2005 FAL.
The supreme court granted certiorari in Industrial Claim Appeals Office v. Ray, 145 P.3d 661 (Colo. 2006), to resolve the conflict between the court of appeals' decisions in the cases of Ray and Midboe. The supreme court affirmed Ray and held that the actual purchase of health insurance was not required in order for the cost of such benefits to be included in the calculation of a claimant's average weekly wage. The supreme court also overruled Midboe to the extent that it was inconsistent with its opinion.
A mistake in the interpretation or understanding of the law may justify an ALJ exercising his discretion to grant a petition to reopen. See Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). To the extent an error or mistake exists, an ALJ is given wide discretion in determining whether the error or mistake is sufficient to warrant reopening of the claim. Id.; see also, Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984) (to the extent a party receives notice that it may be held liable under the Act but, through inaction, permits a final judgment to be entered, an ALJ may determine that such inaction constitutes an error or mistake which justifies reopening).
The ALJ might have viewed the petition to reopen as a mere substitute for the claimant's failure timely to object to the FAL. See Industrial Commission v. Cutshall, supra; Trujillo v. Foundation Installers, W.C. 3-758-994 (March 3, 1993). We further note that an ALJ does not commit an abuse of discretion if he denies a petition to reopen where the evidence indicates that the error or mistake presents a question which could have been raised by direct appeal. Colorado Department of Agriculture v. Wayne, supra; Perrin v. Colorado Department of Labor and Employment W. C. No. 3-984-399 (March 25, 1996).
However, in light of the subsequent announcement of the supreme court in Ray v. Industrial Claim Appeals Office, we cannot say that the ALJ abused his discretion in finding that the claimant's mistake of law warranted reopening. See Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399 (Colo.App. 1981) (reopening authorized where prior order was based on mistaken interpretation of laws as established by subsequent judicial decision); cf Marshall v. Industrial Claim Appeals Office, No. 88CA1032, (Colo.App. Feb. 23, 1989) (not selected for publication) (permitting the claimant a second opportunity to prove entitlement to a penalty where supreme court subsequently reversed prevailing case law); Trujillo v. Foundation Installers, W.C. 3-758-994 (March 3, 1993).
IV.
The respondents contend that the ALJ erred by reopening the claim based on a worsening of condition. We again disagree.
The ALJ found that as a result of the injury the claimant suffered injuries and work restrictions, which have prevented her from doing her regular job with the employer since the date of her work-related injury. He also found that the claimant has not been physically able to work for wages since the date of her work-related injury. Order at 17, ¶ 30. However, the ALJ found that the claimant suffered a worsening of her condition that imposed additional restrictions on her ability to function and that she was entitled to TTD benefits from November 22, 2006 and continuing. Order at 17, ¶ 32. The respondents argue that when a worsened condition causes no greater impact upon the claimant's temporary work capability than she had originally sustained as a result of the injury the claimant is not entitled to any further TTD. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637, 640 (Colo.App. 1997).
Section 8-42-105(3)(a), C.R.S. 2007, terminates temporary disability benefits when the claimant reaches MMI. A subsequent worsening of condition does not necessarily entitle the claimant to an award of temporary disability benefits even if the claimant is unable to return to the pre-injury employment. City of Colorado Springs v. Industrial Claim Appeals Office, supra. To the contrary, the claimant must prove that the worsening resulted in additional physical restrictions which, in turn, caused impairment of the claimant's residual earning capacity beyond that which existed at MMI. If the claimant fails to satisfy these elements of proof, it is presumed that the impairment of the claimant's earning capacity remains permanent. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
According to the respondents, the claimant cannot sustain any additional temporary loss of wages based on a worsening of condition because the claimant's permanent restrictions provided by Dr. McLaughlin never changed. In addition, the respondents point out that the claimant since the date of injury has consistently alleged that her work injury has rendered her unemployable. The respondents, citing Seale v. David J. Brown D/B/A Bootjack Management Company, W. C. No. 4-456-987 (May 28, 2003), argue that the claimant's loss of earning capacity could not become worse even if she has developed additional symptoms since MMI, given the ALJ's finding that as a result of her work-related injury, the claimant has not been physically able to work for wages and has not worked for wages since the date of her work-related injury.
Here the ALJ found that because the claimant suffered a worsening of condition that imposed additional restrictions on her ability to function the claimant is entitled to TTD benefits from November 22, 2006 and continuing until terminated in accordance with the Colorado Workers' Compensation Act. In our view there is substantial evidence in the record supporting the ALJ's determination that the claimant suffered a worsening of condition that imposed additional restrictions on her ability to function.
The ALJ found with record support that Dr. McLaughlin was concerned about the decline reflected in the claimant's electrical studies and referred the claimant to Dr. Fox for an evaluation. Exhibit 3 at 54. The claimant attended this evaluation with Dr. Fox on November 22, 2006, who after examining the claimant recommended that she should undergo a right carpal tunnel release. Exhibit 2 at 7-8. Dr. McLaughlin indicated on January 24, 2007 that because the carpal tunnel release was medically reasonable and necessary that she was no longer at MMI. Exhibit 3 at 38-39.
We cannot say that the ALJ erred as a matter of law in determining that the worsened condition had a greater impact on the claimant's work capacity. We acknowledge the existence in the record of conflicting testimony that could support a contrary result. However, this does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
VI.
The respondents finally assert that the treating physician did not remove the claimant from MMI as defined by law. They argue that because the claimant has always remained at MMI since August 23, 2005 the claimant's condition has not worsened and the ALJ erred in concluding that the claim should be reopened based on a worsening of condition. In his order the ALJ noted, with record support, that Dr. McLaughlin on January 24, 2007 opined that because the surgery could improve her underlying condition she was no longer stable and thus no longer a MMI. Exhibit 3 at 38-39.
The respondents argue that under § 8-40-201(11.5), C.R.S. 2007, because Dr. McLaughlin opined that the claimant's worsening of condition was not affected by any factor other than the passage of time, the claimant was still at MMI. In support of this contention the respondents assert that the passage of time alone by statute shall not affect a finding of MMI. We are not persuaded.
Section 8-40-201(11.5), C.R.S. 2007, defines MMI as the point in time when "any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition." Further, the mere possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of MMI.
However, the question of whether the claimant was at MMI in 2005 is separate and distinct from whether the claimant's work-related condition remained stable in 2007, a point in time when the claimant's treating physicians were recommending she undergo surgery. This is true because the claimant can reach MMI and suffer a subsequent deterioration to the point where she is no longer at MMI. See Richards v. Coca-Cola Bottling Corporation, W. C. No. 4-104-524 (March 8, 1999).
As we read the ALJ's order, he found that Dr. McLaughlin opined that the claimant's worsened condition was causally related to her industrial injury. We do not read § 8-40-201(11.5) to mean that if the claimant's condition worsens over time that the claimant case may not be reopened. As we read § 8-40-201(11.5) a determination of MMI signifies that claimant's condition has become stable and that the permanent effects of her injury were ascertainable. See Golden Animal Hosp. v. Horton, 897 P.2d 833 (Colo. 1995); Olivas-Soto v. Industrial Claim Appeals Office 143 P.3d 1178 (Colo.App. 2006).
The ALJ determined that the claimant's worsening of condition and need for surgery were causally related to the industrial injury, rather than attributing the claimant's need for surgery to the aging process. In our view, the ALJ followed the well established principle that the reopening of a claim, based on a worsened condition, is appropriate where additional medical and temporary disability benefits are warranted. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988); Loucks v. Safeway Stores, 757 P.2d 639 (Colo.App. 1988); Weber v. Montrose County, W. C. No. 3-107-609 (February 14, 1997). The baseline requirement is that the claimant show a change in her physical condition and the ALJ found with record support that is what occurred in the present case. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987).
Here, the ALJ found with record support that the claimant was more symptomatic and has some strength loss, which was not present in August 2005 when he had initially placed her at MMI. Exhibit 3 at 67-68. The ALJ found that Dr. Fox also indicated that the claimant was subjectively and symptomatically worse. Exhibit 2 at 12. Dr. Fox also stated in 2007 that he agreed with Dr. Burnbaum that the patient's EMG and nerve conduction studies showed a worsening of her carpal tunnel and the worsening was a natural progression of her injury. Exhibit 2 at 12. The ALJ, with record support, found that Dr. McLaughlin attributed the worsening of the claimant's symptoms to a natural progression of her original work-related injury at the employer. Dr. McLaughlin opined that it is the nature of the disorder itself as an illness that over time the client has continued deterioration of the median nerves and thus warrant surgery. Exhibit 3 at 68. The claimant testified that since her placement at MMI in 2005 her symptoms worsened. Tr. 41-42.
A claimant may reopen an award upon proof that his physical condition has worsened and additional medical benefits are warranted. See Dorman v. BW Construction Co., 765 P.2d 1033 (Colo.App. 1988); Rivera v. Dobbs International Services, Inc., W. C. Nos. 4-290-189, 4-414-636 (December 17, 2001). The ALJ, also with record support, found that Dr. McLaughlin, who had initially placed the claimant at MMI on August 23, 2005 and later on January 24, 2007, found that conservative measures had failed, surgery was warranted, and therefore the claimant was no longer stable and no longer at MMI. Exhibit 3 at 39. We therefore find there is record support for the ALJ's determination of the claimant's entitlement to a reopening and award of TTD benefits from January 24, 3007 and onward. See Patla v. Bethesda Care Center, W.C. No. 4-150-170, July 20, 1995 (reopening of a claim based on a worsened condition indicates that the claimant's condition has become so unstable that it is not consistent with any prior determination of MMI).
The opinions of Dr. McLaughlin and Dr. Fox and the claimant's testimony support the ALJ's determination that the claimant's symptoms continued to worsen after MMI, and that surgery became a reasonable and necessary treatment by January 24, 2007. Although other findings were possible, substantial evidence supports the ALJ's finding that reopening was appropriate because the claimant needed additional medical treatment to cure and relieve the effects of the injury. Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo.App. 2000) (reopening is appropriate when additional temporary disability or medical benefits are needed); Falco v. Wendy's International Inc. W. C. No. 4-131-868 (April 3, 2002). The mere fact that other findings and conclusions were possible is immaterial on review.
IT IS THEREFORE ORDERED that the ALJ's order issued February 6, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
WILMA SICKLER, GRAND JUNCTION, CO, (Claimant)
CITY MARKET, FRUITA, CO, (Employer)
SEDGWICK CLAIMS MGMT SVC INC, Attn: ROBERT HARRIS/KATHY SVOBODA, SALT LAKE CITY, UT, (Insurer)
KILLIAN, JENSEN DAVIS, PC, Attn: AMY K EATON-FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant)
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: JEFF FRANCIS, ESQ., GRAND JUNCTION, CO, (For Respondents)