Opinion
W.C. No. 3-107-609
February 14, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Martinez (ALJ), denying its petition to reopen based on error or mistake. We affirm.
The claimant sustained a compensable back injury in December 1992, and underwent surgery in 1993. On February 23, 1994, the claimant's treating physician, Dr. Fox, determined that the claimant had reached maximum medical improvement (MMI) with a twenty-one percent whole person medical impairment. The respondent then filed a final admission of liability.
Subsequently, the claimant filed a petition to reopen based on a worsened condition. A hearing was held in November 1995, and the claimant testified that he was suffering increased hip and leg pain. During the hearing, the claimant denied that he "worked in any capacity for [himself] or anyone else" after he ceased working for the respondent in 1994. (Tr. November 22, 1995, p. 19).
In an order dated December 12, 1995, the ALJ granted the claimant's petition to reopen and awarded temporary total disability benefits commencing June 27, 1995. In support, the ALJ relied on the claimant's testimony concerning increased pain, as well as the deposition testimony of Dr. Fox. Specifically, Dr. Fox testified that it was his "general feeling" that the claimant's condition had worsened by the time of his evaluation in June 1995, and that the claimant was unable to continue work. (Fox depo., November 11, 1995, p. 22).
Apparently, the respondent did not file a petition to review the December 12 order. However, in May 1996, the respondent filed a petition to reopen alleging that the December 12 order was based on error or mistake. Specifically, the respondent alleged that the claimant engaged in fraud or material misrepresentation when he testified at the November 1995 hearing that he did not work after leaving the respondent. The respondent indicated that it had "obtained information that the Claimant has worked and continued to work," and that his "current problems are due to subsequent employment."
At the hearing on its petition to reopen, the respondent produced a videotape which depicted the claimant washing trucks with a hand-held pressure wand. However, relying on the claimant's testimony, the ALJ found that the truck washing business was owned by the claimant's wife, and that the "claimant's participation in this business since June 27, 1995 has been on an irregular, less than four hours per month basis, for which he earns no wage." Thus, the ALJ found that the claimant had a plausible basis for his prior testimony that he was "not working for himself or anyone else" when washing the vehicles, and that he did not make a "fraudulent misrepresentation" about his work status.
In any event, the ALJ relied on the testimony of Dr. Fox that the claimant's activity in washing the trucks would not cause a deterioration in the claimant's back condition. Thus, the ALJ concluded that the claimant's testimony did not constitute a "material misrepresentation" because the washing activity did not cause the worsening of the claimant's condition, and "because the activities now known had not been shown by the respondent to warrant a change in the outcome of [the prior] hearing." Thus, the ALJ denied the respondent's petition to reopen.
I.
On review, the respondent's principal contention is that the evidence does not support the denial of the petition to reopen. Specifically, the respondent contests the finding that the claimant did not commit fraud or misrepresentation when he testified at the November 1995 hearing. The respondent also contests the finding that washing the trucks did not constitute "subsequent employment." We perceive no error.
Generally, the authority to reopen a claim under § 8-43-303(1), C.R.S. (1996 Cum. Supp.), based on error or mistake, is discretionary with the ALJ. Thus, we may not interfere with the order unless there is fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse is not shown unless the order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Fraud committed in the course of a hearing, as where a witness testifies falsely or in a misleading fashion, may constitute the type of error or mistake which justifies reopening an otherwise final award of benefits. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995). The elements of fraud or material misrepresentation are as follows: (1) A false representation of a material existing fact, or a representation as to a material fact with reckless disregard of its truth; or concealment of a material existing fact; (2) Knowledge on the part of one making the representation that it is false; (3) Ignorance on the part of the one to whom the representation is made, or the fact concealed, of the falsity of the representation or the existence of the fact; (4) Making of the representation or concealment of the fact with the intent that it be acted upon; (5) Action based on the representation or concealment resulting in damage. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937).
Where the evidence is subject to more than one interpretation, the existence of fraud is a factual issue for resolution by the ALJ. See Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
The respondent's argument notwithstanding, the ALJ was not compelled to find that the claimant deliberately or recklessly concealed the washing activity at the time of the November 1995 hearing. The question of whether the claimant "worked" for himself or anyone else could easily have implied to the claimant that counsel was inquiring whether he was earning money as a result of selling his services. As the claimant argues, the term "work," in the context of employment, generally connotes the performance services under a contract for hire, express or implied. See § 8-40-202(1)(b), C.R.S. (1996 Cum. Supp.).
Similarly, the claimant's testimony fully supports the ALJ's determination that his activities did not constitute "employment" with his wife. The claimant performed these activities irregularly, and was not paid any wages.
It is true that the evidence might have been interpreted differently, or that the ALJ might have chosen to discredit the claimant's testimony. However, we may not substitute our judgment for that of the ALJ on these factual issues, and we decline the respondent's invitation to do so. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). It follows that there was no abuse of discretion in the ALJ's refusal to reopen the claim based on the alleged error or mistake ensuing from the claimant's 1995 testimony.
II.
The respondent next contends that the evidence fails to support the ALJ's finding that the washing activities did not cause a worsening of the claimant's condition. In support of this contention, the respondent cites the testimony of Dr. Fox that washing the trucks could increase the claimant's pain, and Dr. Winkler's opinion that the worsening of the claimant's condition is attributable to degeneration of a preexisting back condition, failure to exercise and "overuse of his back and working." We are not persuaded.
Initially, we note that if the ALJ correctly found that washing the trucks is not the cause of the claimant's worsened condition, such a conclusion supports the denial of the petition to reopen regardless of whether the claimant's 1995 testimony constituted fraud or misrepresentation. This is true because the ALJ's prior determination that the claimant's worsened condition is attributable to the industrial injury remains in effect regardless of whether the claimant misled the ALJ concerning his work activities. There is no abuse of discretion in denying a petition to reopen if the alleged error or mistake would not alter the outcome of the case. In such cases, the prior award is not mistaken or erroneous. Cf. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989) (may reopen based on new medical evidence showing an error in prior denial of benefits).
The question of causation itself is one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Although, medical evidence is not necessary to prove causation, when such evidence is presented it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent's argument notwithstanding, the evidence in the record supports the ALJ's conclusion that the worsening of the claimant's condition was related to the industrial injury, and not the subsequent washing activity. A plausible interpretation of Dr. Fox's testimony is that the claimant's condition symptomatically worsened after the initial date of MMI, and that the claimant again reached MMI on May 14, 1996. (Fox depo., July 23, 1996, pp. 30-31). Further, Dr. Fox stated that he did not observe the claimant performing any activity on the videotape which suggested that washing the trucks would cause a deterioration of the claimant's condition. (Fox depo. July 23, 1996, pp. 16-18).
It is true that Dr. Winkler contradicted the opinions of Dr. Fox. However, the ALJ found Dr. Fox credible, and we are in no position to reassess the credibility of the medical experts. Further, insofar as the testimony of Dr. Fox contains some inconsistencies, it was the ALJ's province to resolve them. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
III.
The respondent next argues that, because the claimant committed fraud, it is entitled to recover previously paid temporary total disability benefits by way of "credit or offset." We need not consider this issue since we have already held that the evidence supports the ALJ's finding that the claimant did not commit fraud or misrepresentation. In any event, the alleged fraud and misrepresentation would not warrant reopening the prior award.
IV.
The respondent's final contention is that the ALJ erred in awarding temporary total disability benefits since the record proves that the claimant reached MMI on February 23, 1994, and that his condition has remained stable since that date. In support of this argument, the claimant relies on § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), which provides that MMI exists when the physical or mental impairment has become stable and no further treatment is expected to improve the condition, without regard to the "possibility of improvement or deterioration resulting from the passage of time." The respondent points out that Dr. Fox has not provided any additional treatment since February 1994. We find no error.
It is well established that the reopening of a claim, based on 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). The baseline requirement is that the claimant show a change in his physical condition. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987).
Here, Dr. Fox testified that, after February 1994, the claimant's condition worsened as evidenced by increased pain in the hip and leg. Further, Dr. Fox recommended that the claimant undergo an MRI for purposes of assessing what, if anything, could be done to treat the increased symptoms. (Fox depo., November 11, 1995, p. 17). This evidence, taken with the claimant's testimony concerning his increased symptoms, constitutes ample support for the conclusion that the claimant's physical condition worsened, and that he needed additional diagnostic procedures to assess the condition. The mere fact that the procedures were diagnostic does not disqualify them as necessary medical treatment for purposes of reopening. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
In any event, the respondent's reliance on § 8-40-201(11.5) is misplaced. This is not a case in which the ALJ reopened based on the mere "possibility" that the claimant's condition may deteriorate in the future. Rather, the ALJ found, on substantial evidence, that the claimant's condition actually deteriorated and that additional medical diagnosis was necessary. The mere fact that the treating physician did not prescribe additional treatment after completion of the diagnostic procedures does not vitiate the finding that the claimant's physical condition worsened, and that he warranted additional medical treatment in the form of diagnostic examinations.
IT IS THEREFORE ORDERED that the ALJ's order dated August 23, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 14, 1997 to the following parties:
Jacob Weber, 59315 Ida Rd., Olathe, CO 81425
Montrose County, P. O. Box 1289, Montrose, CO 81402-1289
Bev Olson, OHMS, 700 Broadway, #1132, Denver, CO 80273
County Workers' Compensation Pool, c/o Occupational Healthcare Mgmt., P. O. Box 173682, Denver, CO 80217-3682
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
By: ____________________________________