Opinion
W.C. No. 4-158-043
May 13, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ Friend) dated September 12, 1997, which denied his petition to reopen. We affirm.
Following a hearing on December 14, 1995, Administrative Law Judge Stuber (ALJ Stuber) entered an order dated January 22, 1996, which denied permanent total disability benefits. ALJ Stuber's order was upheld on appeal.
On September 8, 1996, the claimant filed a petition to reopen the claim, which alleged "error" in ALJ Stuber's determination that he was not permanently and totally disabled. A hearing on the petition to reopen was held before ALJ Friend on September 9, 1997, but no evidence was taken.
Based upon the arguments of counsel and a review of the record, ALJ Friend found that the claimant sought to reopen the claim to present a medical report from Dr. Finn and additional testimony from witnesses who testified at the December 1995 hearing. The ALJ found that the additional testimony was designed to prove that the claimant lives 51 miles from a community where work within his medical restrictions is available, that the claimant cannot commute to work 51 miles a day, that the claimant uses a hot tub several times a day for pain relief, and that the claimant's need for pain medication to relieve the effects of the industrial injury has increased. (Tr. p. 17); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered in reviewing the written order).
However, ALJ Friend found that ALJ Stuber heard testimony about the lack of suitable jobs within the claimant's local community, the claimant's ability or inability to commute to work, and the claimant's medical condition including his use of pain medications and a prescribed hot tub. ALJ Friend also found that the claimant had a full and fair opportunity to present the proffered evidence at the prior hearing. Therefore, ALJ Friend concluded that the claimant's desire to present additional evidence did not warrant reopening the claim.
On review, the claimant contests ALJ Friend's finding that he had a full and fair opportunity to present the disputed evidence in December 1995. The claimant contends that the Dr. Finn's medical report concerning his driving restrictions is new evidence, which could not have been presented at the prior hearing. Further, the claimant contends that this evidence compels a finding of permanent total disability. Therefore, the claimant argues that ALJ Friend erroneously denied the petition to reopen. We disagree.
Under § 8-43-303(1), C.R.S. 1997, the reopening of a claim on the grounds of error or mistake is a matter within the discretion of the ALJ. Accordingly, we may not interfere with the ALJ's determination 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 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).
In exercising his discretion, the ALJ must engage in 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).
As we read the order of ALJ Friend, he determined that there was no error by ALJ Stuber. However ALJ Friend also determined that, even if there was an error, it was not the type of error which justified reopening the claim because the claimant failed to demonstrate that the proffered testimony could not have been presented at the December 1995 hearing. We cannot say that ALJ Friend's determinations exceed the bounds of reason.
The claimant did not endorse the December 1995 hearing transcript as part of the record and has not provided a copy of the transcript on review. Similarly, the claimant did not endorse ALJ Stuber's January 22, 1996 order as part of the appellate record and the record does not contain a copy of that order. Under these circumstances, we must assume that the ALJ Friend's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Accordingly, we must uphold ALJ Friend's determination that ALJ Stuber heard evidence about the claimant's inability to commute to another town to obtain employment within his restrictions and his dependence on a hot tub and pain medications before denying the claim for permanent total disability benefits. Moreover, this finding supports the conclusion that ALJ Stuber's denial of benefits was not the result of "error."
Similarly, in the absence of a transcript we must assume that the record supports ALJ Friend's determination that the proffered testimony is not newly discovered evidence, and could have been elicited from the witnesses during the December 1995 hearing if the claimant had exercised due diligence. Consequently, ALJ Friend did not abuse his discretion in concluding that the claimant failed to establish an error which warranted reopening the claim. See Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 638 (1971) (ALJ does not abuse his discretion if he denies a petition to reopen because facts and evidence existed at the time of the prior order, and should have been within the knowledge of the parties at that time); Hesse v Hesse W.C. No. 4-176-922 et al. (December 219, 1997) (no abuse of discretion in ALJ's refusal to reopen claim based on change in the quantity and quality of medical evidence on causation).
The claimant's remaining arguments have been considered and do not alter our conclusions. The ALJ did not expressly find that Renz v. Larimer County School District Poudre R-1, supra, is not applicable to this claim. However, Renz involved a mistake of law where an ALJ's order was inconsistent with a subsequent judicial interpretation of the controlling statute. In contrast, there is no assertion that ALJ Stuber misapplied the law in denying the claim for permanent total disability benefits. Thus, the claimant's reliance upon the principles established in Renz do not compel reopening of the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated September 12, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 13, 1998 to the following parties:
Scott A. Notz, 20719 County Rd. 73, Calhan, CO 80808
Notz Masonry, Inc., 10433 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)
Roxanne Baca, Esq., Office of the Attorney General, 1525 Sherman St., 5th flr. Denver, CO 80203 (For Subsequent Injury Fund)
Steven Picardi, Esq., 1660 Wynkoop St., #900, Denver, CO 80202 (For Respondents)
BY: _______________________