Opinion
W.C. No. 4-248-731
August 8, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ Wheelock) which dismissed and denied his petition to reopen on the grounds of error or mistake. We set aside the order and remand for further proceedings.
This matter has previously been before us. A brief procedural history is necessary to understand the issue on review.
In 1994, the claimant suffered an admitted injury. The claim was closed pursuant to the filing of an uncontested Final Admission of Liability. The admission terminated temporary disability benefits effective January 19, 1996, the date Dr. Weinstein placed the claimant at maximum medical improvement (MMI).
The claimant's condition subsequently worsened. In November 1996, the claimant filed a petition to reopen on the grounds of change of condition. In an order dated July 2, 1998, ALJ Stuber granted the claimant's petition to reopen and awarded permanent partial disability and future medical benefits. We affirmed ALJ Stuber's order on April 13, 1999. No further appeal was taken.
In June 1999, the claim requested temporary disability benefits retroactive to October 2, 1996. The respondents objected and argued the issue of temporary disability benefits was closed. ALJ Mattoon determined the issue of temporary disability benefits was within the ambit of the claimant's November 1996 petition to reopen, and awarded temporary disability benefits. The respondents appealed.
On review, we concluded the issue of temporary disability was closed by our Final Order dated April 13, 1999, and that the claimant was precluded from receiving further temporary disability benefits in the absence of a petition and order reopening the claim. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) . Consequently, we set aside the award of temporary disability benefits.
Thereafter, the claimant filed a new petition to reopen which alleged an "error or mistake" concerning the lack of temporary disability payments following ALJ Stuber's order reopening the claim. At the commencement of the hearing, the respondents argued the petition to reopen was barred by the statute of limitations. ALJ Wheelock agreed and therefore, terminated the hearing and denied the petition to reopen. On February 21, 2000, ALJ Wheelock issued a written order in which she determined the petition to reopen was not barred by the statute of limitations. However, ALJ Wheelock determined the claimant failed to prove any mistake or error which justified reopening the claim. Therefore, ALJ Wheelock denied the petition to reopen and the request for temporary disability benefits. This appeal followed.
The claimant contends, inter alia, that ALJ Wheelock's order denied him due process of law. The claimant argues the case should be remanded for an evidentiary hearing on whether there was a mistake or error which warrants reopening the claim. We agree.
Section 8-43-303(1)(a), C.R.S. 2000, authorizes an ALJ to reopen a claim on the grounds of error, or mistake of law or fact . Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). In determining whether to reopen the claim due to "mistake or error," the ALJ is required to determine whether a mistake or error was made, and if so, whether it was the type of mistake which justifies reopening the claim. Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981). Where the ALJ finds the existence of an "error or 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 a procedural right 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 the mistake circumvents the objectives of the Workers' Compensation Act. 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).
The ALJ's authority to reopen a claim 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 not supported by the record or is contrary to the law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
Initially, we disagree with the ALJ's finding that the sole error or mistake alleged is ALJ Stuber's failure to award temporary disability benefits in the July 1998 order, or as claimant's counsel clarified, that "temporary disability benefits were not awarded for a period of time, when the claimant was temporarily disabled." (Tr. p. 22 ). Rather, as we understand the claimant's position, he contends, in effect, that the alleged error or mistake was also his attorney's failure to litigate the issue of temporary disability benefits in advance of ALJ Stuber's order which closed the claim without reservation of the issue for future determination. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (where substance of argument is raised before ALJ, argument is preserved for review even if label used to describe argument is not the same).
Further, in explanation for that failure, claimant's counsel alleged he was under the impression that the respondents agreed to pay temporary disability benefits if ALJ Stuber granted the petition to reopen. Claimant's attorney added that he provided the respondents with proof of the claimant's medical restrictions and actual wage loss during the relevant period when the claimant was not at MMI and therefore, he was under the impression the claimant's entitlement to temporary disability benefits was just a matter of calculating the amount due. (Tr. p. 18). Consequently, claimant's counsel did not endorse the issue of temporary disability for adjudication before ALJ Stuber. He also contends that it was not until after ALJ Stuber entered the award of permanent partial disability benefits that the respondents refused to honor the "agreement" to pay temporary disability benefits. (Tr. 18).
Where an administrative adjudication turns on issues of fact, due process of law requires that parties be given an opportunity to present evidence and argument in support of their position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). This is true because determinations of credibility may not be entered without affording the claimant an opportunity for an evidentiary hearing. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987).
The allegations made by claimant's counsel raise issues of fact concerning the reasons for the error or mistake. Furthermore, the record does not contain any evidence which directly contradicts the claimant's assertions. Under these circumstances, the ALJ may not summarily reject them without affording the claimant an evidentiary hearing. See Pueblo School District No. 60 v. Clementi, supra; Trujillo v. Industrial Commission, supra. It follows the ALJ abused her discretion in finding that the claimant failed to prove an error or mistake that would justify reopening the claim (s ee Tr. 5, 27), and in denying the petition to reopen without affording the claimant an opportunity to present evidence concerning the reason for the mistake or error. Under these circumstances, we must remand the matter for a new hearing which affords the claimant an opportunity to present evidence in support of his petition to reopen on the grounds of mistake or error.
In remanding the matter, we necessarily disagree with the claimant's contention that the reason for the mistake is "irrelevant." However, we should not be understood as expressing any opinion concerning the reason for the alleged error or mistake, or whether it warrants reopening the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 2001, is set aside and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed August 8, 2001 to the following parties:
James A. Weis, 19533 Murphy Rd., Peyton, CO 80831
Terri Danberg, Litton Data Systems, P. O. Box 6008, M/S 15-24, Agoura Hills, CA 91376-6008
Continental Casualty Co., Wendy Stalkfleet, RSK Co., P. O. Box 5408, Denver, CO 80217-5408
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy