Opinion
W.C. No. 4-516-764.
February 25, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which reopened the claim, awarded permanent total disability (PTD) benefits and determined the respondents erroneously reduced the claimant's nonmedical compensation under § 8-42-112.5 C.R.S. 2004. We affirm.
The claimant suffered multiple injuries in August 2001 when the pickup truck he was loading rolled over his body. During emergency treatment a blood sample was taken which revealed a blood alcohol level of 0.148. The respondents filed a General Admission of Liability (GAL) which admitted liability for temporary total disability (TTD) benefits reduced to a rate of $93.34 per week pursuant to § 8-42-112.5 (50 percent reduction of nonmedical benefits for injuries caused by intoxication).
In 2002 the claimant reached maximum medical improvement (MMI) and was assigned a combined whole person medical impairment rating of 42 percent. As a result of the injuries the claimant is unable to perform the physically demanding activities of his pre-injury employment for the respondent employer.
The respondents filed a Final Admission of Liability (FAL) and two amended FALs which admitted liability for permanent partial disability (PPD) benefits calculated at the rate of $93.34 per week for a total of $16,363.57. The claimant did not object to the FALs and the claim was closed.
In August 2003 the claimant petitioned to reopen the claim on grounds the FALs erroneously reduced nonmedical compensation under § 8-42-112.5 because no duplicate blood sample was preserved and made available in compliance with the statute. The claimant also requested an award of PTD benefits.
The ALJ found the FALs were predicated on the mistaken legal premise that maintaining a second blood sample was not a prerequisite to the right to reduce compensation under § 8-42-112.5. The ALJ also determined the parties were mutually mistaken that the claimant was PPD instead of PTD. Further, the ALJ determined the mistakes justified reopening the claim. The ALJ then awarded PTD benefits retroactive to the date of MMI.
The ALJ also determined the respondents failed to prove the claimant's elevated blood alcohol level was the cause of the injuries. Consequently, the ALJ ordered the respondents to pay TTD and PTD benefits without reducing the rate of benefits under § 8-42-112.5.
I.
On review, the respondents contend the ALJ erroneously found their reduction in compensation based on § 8-42-112.5. constituted a mistake of law sufficient to reopen the claim. We disagree.
Section 8-43-203(2)(b)(II), C.R.S. 2004, provides that where a claimant fails timely to object to a FAL, the "issues admitted in the final admission" are automatically closed and the claimant is barred from obtaining further benefits in the absence of an order reopening the claim under § 8-43-303 C.R.S. 2004. Burke v. Industrial Claim Appeals Office, 905 P. 2d 1 (Colo.App. 1994). Under § 8-43-303(1)(a), an ALJ may reopen any award on the grounds of change of condition, 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 issue is one of mistake, an ALJ is required to make two determinations. First the ALJ must decide whether a mistake was made. If so, the ALJ must then decide whether it is the type of mistake which justifies reopening the case. See Travelers Insurance Co., Industrial Commission, 646 P.2d 399 (Colo.App. 1981).
Section 8-42-112.5. was enacted in 1999 and applies to injuries that occur on or after July 1, 1999. See 1999 Colo. Sess. Laws, ch. 174 at 580. The statute allows the respondents to claim a 50 percent reduction in nonmedical compensation where the industrial injury results from a blood alcohol level of 0.10 percent or above:
"as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests. A duplicate sample from any test conducted shall be preserved and made available to the worker for purposes of a second test to be conducted at the worker's expense. If the test indicates the presence of such substances or of alcohol at such level, it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication. This presumption may be overcome by clear and convincing evidence." (Emphasis added)
In interpreting this statute, we must attempt to further the legislative intent. Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004). To discern the intent we must give the words in the statute their plain and ordinary meanings, unless the result is absurd. Anderson v. Longmont Toyota Inc., supra. To the extent the statute contains some ambiguity, it is appropriate to review the legislative history of the statute to discern its legislative intent. Dworkin, Chambers Williams, P.C. v. Provo, 81 P.3d 1053 (Colo. 2003); Midboe v. Industrial Claim Appeals Office, 88 P.3d 643 (Colo.App. 2003).
Section 8-42-112.5 provides that the exclusive means of proving the presence of impermissible levels of alcohol in a worker's system shall be "a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests." Because the test can only be performed by a qualified facility, a blood alcohol test result of 0.10 or above is entitled to an evidentiary presumption that the subject of the test was intoxicated and that the industrial injury was caused by the intoxication.
However, the statute provides the testing process must also include a second sample which "shall be preserved and made available to" the injured worker. The use of the term "shall" reflects a mandatory requirement. Salazar v. Industrial Claim Appeals Office, 10 P.3d 666 (Colo.App. 2000). Therefore, we perceive no ambiguity. Instead, we agree with the ALJ that preservation of a second sample is a condition precedent to the evidentiary presumption created by a 0.10 blood alcohol test from the first sample which in turn is required to assert a penalty under § 8-42-112.5.
Nevertheless, insofar as the statute is ambiguous, we reach the same conclusion. The legislative history indicates that the requirement to preserve a second sample was enacted as a procedural protection against the possible reduction of benefits from a false positive result in the first blood sample testing. The General Assembly determined that given the magnitude of the evidentiary presumption created by an initial test result showing 0.10 or greater blood alcohol level, the availability of a second sample for the claimant to independently test is a necessary safeguard to the wrongful loss of benefits. ( See Respondents' Brief in Support of the Petition to Review, Exhibit C, House Committee on Business Affairs Labor Transcript on Senate Bill 99-161, pp. 2, 4, 21, 29). Therefore, the General Assembly conditioned application of the penalty statute on the availability of a second sample for use by the claimant to contest the accuracy of the initial test. This conclusion is buttressed by the lack of legislative history concerning the effect when no second sample was available.
Here it is undisputed the respondents did not preserve a second blood sample. However, the respondents contend the mistake did not justify reopening the claim because the respondents did not know about the industrial accident for 1 week, the respondents had no control over the existence of a second sample and the claimant never attempted to challenge the penalty by requesting the second sample be tested.
The determination of whether a mistake is one that warrants reopening is discretionary. Consequently, 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 unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
The failure to exercise procedural or appellate rights is not fatal to a petition to reopen on the grounds of a mistake. Rather, it is only one factor to be considered by the ALJ in determining whether the mistake justifies reopening. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989). The ALJ may also consider other matters, including whether or not perpetuating a mistake unreasonably circumvents the objectives of the Workers' Compensation Act. Indeed, 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).
As we understand the ALJ's order he determined that the injustice caused by the respondents' reduction of not only the claimant's TTD benefits but also the claimant's lifetime benefits for PTD "without complying with the mandatory requirements of the section" was a sufficient legal mistake to warrant reopening the claim. ( See Conclusions of Law b). We cannot say the ALJ's reasoning exceeds the bounds of reason. Furthermore, because there was no second sample, the claimant's failure to challenge the accuracy of the intoxication penalty between 2001 and 2003 did not prejudice the respondents.
Nevertheless, the respondents contend that the initial hospital test which showed a blood/alcohol level of 0.148 at the time of the industrial accident compelled the ALJ to find the injuries were caused by intoxication. Again, we disagree.
The statute does not permit proof of intoxication without preservation of a second blood test. Therefore, the respondents presented no evidence sufficient to prove intoxication.
II.
The respondents also contend the ALJ erred in awarding benefits for PTD. We perceive no basis to disturb the ALJ's order.
Initially, we assume arguendo the ALJ erred in finding the issue of PTD was not "addressed" in the FALs. See Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001) (admission for PPD benefits is implicit denial of PTD benefits); Larkin v. K-Mart, W.C. No. 4-340-159 (April 7, 2003). Further it is undisputed the claimant did not timely object to the FALs. Therefore, the ALJ erred in finding the issue of PTD was not closed.
However, the ALJ alternatively found that insofar as the issue of PTD was closed, the claimant proved the FALs were based upon a mutual mistake of fact concerning the claimant's ability to earn wages. Further, the ALJ determined the mistake warranted reopening the issue of PTD. Therefore, the ALJ's error is harmless. See § 8-43-310 C.R.S. 2004.
We do not dispute the respondents' contention that proof a mistake of fact was "mutual" is only required where a party seeks to reopen a settlement. However, because proof of a mistake shared by both parties inherently requires greater proof than a unilateral mistake, the ALJ's erroneous application of the burden of proof enured to the benefit of the respondents.
Further, although the ALJ erroneously listed "change of condition" as an issue for adjudication, the respondents concede the ALJ did not reopen the claim based on a change of condition. Consequently, the ALJ's erroneous reference is harmless.
The respondents remaining arguments have been considered and do not alter our conclusions. The respondents do not cite any authority to support their assertion that it was reversible error for the ALJ to consider evidence the claimant was PTD in finding a mistake of fact which justified reopening the claim. Further, the ALJ's finding that the claimant was PTD at the time of MMI is amply supported by the testimony of vocational expert Rodney Wilson, the claimant's testimony and the medical records.
Finally, the ALJ was not required to find that the mistake justified reopening, but in view of the respondents' admission for PPD benefits of less than $17,000 and the ALJ's finding the claimant is unable to return to employment, the tremendousness financial harm to the claimant by not correcting the mistake supports the ALJ's order reopening the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated August 23, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Ervin Stohl, Florissant, CO, Blue Mountain Ranch Boys Camp, Florissant, CO, Jennifer Shearer, The Hartford, Houston, TX, James M. Anderson, Esq., Colorado Springs, CO, (For Claimant).
Douglas J. Kotarek, Esq., Denver, CO, (For Respondents).