Opinion
W.C. No. 4-158-043
February 11, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ Gandy), which denied his petition to reopen. We set aside the order and remand for the entry of a new order.
The claimant suffered an admitted low back injury on December 15, 1992. On December 14, 1995, a hearing was held on the issue of permanent disability. In an order dated January 22, 1996, ALJ Stuber denied the claim for permanent total disability benefits and awarded permanent partial disability benefits. We upheld ALJ Stuber's order, and the Court of Appeals affirmed our order on May 15, 1997.
On September 9, 1997, the claimant filed a petition to reopen on grounds of change of condition, error or mistake. In an order dated April 1, 1998, ALJ Gandy denied the Petition to Reopen, and therefore, denied the requests for permanent total disability benefits or additional permanent partial disability benefits. The claimant timely appealed.
On review, we concluded ALJ Gandy did not apply the correct legal standard in denying the petition to reopen on the grounds of "mistake or error." Therefore, in an Order of Remand dated September 17, 1998, we set aside ALJ Gandy's order and remanded the matter for the entry of a new order.
On remand, ALJ Gandy entered the order on review. ALJ Gandy determined that the claimant failed to prove a change of condition. ALJ Gandy also found the claimant failed to "demonstrate any credible, persuasive evidence" that the 1996 order denying the claim of permanent total disability was "factually or legally mistaken or in error." Further, ALJ Gandy determined that the claimant "failed to persuasively demonstrate any factual or legal mistake or error sufficient to justify reopening the claim." Consequently, ALJ Gandy denied and dismissed the petition to reopen.
The claimant contends, inter alia, that ALJ Gandy applied the wrong legal standard in denying the petition to reopen on the grounds of "mistake." In support the claimant points out ALJ Gandy's Conclusion of Law 1 where he stated that reopening a claim on the ground of "mistake" requires proof of a "mutual mistake of a material fact or legal error." We conclude that ALJ Gandy's findings of fact are insufficient to permit appellate review, and therefore, we remand the matter for additional findings and the entry of a new order. Section 8-43-301(8), C.R.S. 1998.
As stated in our prior order, the legal standard applicable to a petition to reopen on the grounds of "mistake or error" requires a two step analysis. The ALJ must first determine whether there has been an error or mistake. If there is an error, the ALJ must determine whether it is the type of error which warrants a reopening. Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984). Further, the ALJ may consider whether the error could have been avoided by the exercise of due diligence at the time of the prior hearing. See Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967); Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984). However, the failure to exercise procedural or appellate rights is not dispositive of whether the claimant has established an error or mistake which justifies reopening the claim. Renz v. Larimer County School District Poudre R-1, supra. To the contrary, the ALJ may exercise his discretion to reopen a claim if he determines that the overall circumstances warrant reopening. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989); Plotner v. Westran, Inc., W.C. No. 3-108-724 (March 19, 1998).
The requirement for proof of a "mutual mistake" is only applicable to the reopening of a settlement agreement, and this claim does not involve those facts. Section 8-43-303(1), C.R.S. 1998. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998). Therefore, ALJ Gandy's Conclusion of Law 1 is not a correct statement of the applicable legal standard.
Furthermore, ALJ Gandy did not make specific findings of fact concerning the evidence he relied upon to find that the claimant failed to demonstrate "any credible, persuasive" evidence of a "factual or legal mistake or error sufficient to justify reopening the claim." Under these circumstances, ALJ Gandy's findings of fact are insufficient for us to ascertain whether he denied the petition to reopen because the claimant failed to prove a factual or legal mistake that was "mutual." See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990) (ALJ's findings must be sufficient for court to determine the basis for the decision). Consequently, the matter is remanded to ALJ Gandy for the entry of a new order which reflects his consideration of the proper legal standard and articulates the evidence relied upon to resolve the issues in dispute.
However, our remand should not be understood as reflecting any opinion concerning whether the claimant established a mistake or error which justifies reopening the claim. That is a matter within the sole discretion of the ALJ.
In view of our remand it is premature to consider the claimant's remaining arguments.
IT IS THEREFORE ORDERED that ALJ Gandy's order dated October 14, 1998, is set aside and the matter is remanded to ALJ Gandy for a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain _______________________________ Kathy E. Dean
Copies of this decision were mailed February 11, 1999 to the following parties:
Scott A. Notz, 20719 County Rd. 73, Calhan, CO 80808
Notz Masonry, Inc., 20433 County Road 73, Calhan, CO 80808-9602
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
Gary J. Benson, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80212 (For the Employer)
Steven Picardi, Esq., 1660 Wynkoop St., #900, Denver, CO 80202 (For Respondents)
BY: _______________