Opinion
W.C. No. 4-150-563
November 7, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Schulman (ALJ) which denied her petition to reopen based on mistake of law. We affirm.
The controversy in this case stems from the claimant's request to have bilateral, scheduled upper extremity impairment ratings converted to a single whole person impairment rating based on a "sleep dysfunction." The case has a complex procedural history which we shall briefly summarize.
In an order dated February 5, 1997, ALJ Wheelock awarded the claimant permanent partial disability benefits based on scheduled impairments to both upper extremities. ALJ Wheelock found the claimant failed to establish any functional impairment proximal to the shoulder joint, and that the impairment ratings were based on entrapment of the median nerve at the level of the wrists. See American Medical Association Guides to the Evaluation of Permanent Impairment Third Edition, (Revised) (AMA Guides) Table 15. In an order dated January 21, 1998, we affirmed ALJ Wheelock's order. We concluded that substantial evidence supported ALJ Wheelock's finding the claimant did not suffer any functional impairment not found on the schedule because the claimant was not receiving additional treatment and no physician had rated the sleep disorder. See Struach v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). Moreover, we concluded the sleep disorder was not separately rated and, therefore, did not combine with the claimant's upper extremity impairments so as to justify a whole person impairment rating. See Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997).
Subsequently, we issued an order in the case of Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (April 22, 1999) ( Berumen I). In that case, a physician, utilizing Table 15 of the AMA Guides, found the claimant suffered from a 25 percent impairment of the left upper extremity, and a 60 percent impairment of the right upper extremity. The physician converted the combined upper extremity rating to a single 46 percent whole person rating. The record contained medical records and expert medical opinion that the rating physician considered the claimant's sleep disorder in determining the "severity" of the claimant's bilateral entrapment neuropathies under Table 15.
In Berumen I, we held ALJ Stuber may have misapplied the law in declining to convert the claimant's scheduled upper extremity impairments to a single whole person impairment. We instructed the ALJ Stuber to determine, as a matter of fact, whether the claimant's sleep disorder constituted a "functional impairment" not found on the schedule. We further instructed ALJ to determine whether, as a matter of fact, the sleep disorder was considered "as an element of the claimant's extremity ratings under Table 15." Finally, we held that if the sleep disorder was considered as an element in determining the severity of the claimant's upper extremity rating, ALJ Stuber should award benefits based on a single whole person impairment. In so doing, we reasoned that Morris v. Industrial Claim Appeals Office could be distinguished from the facts in Berumen because the claimant's sleep disorder could be considered as a non-scheduled, integral element of the claimant's upper extremity injuries, not an attempt to "combine" the rated component of the injuries (nerve entrapment) with an unrated component (sleep disorder).
On remand, ALJ Stuber found the claimant's sleep disorder constituted a functional impairment, and the sleep disorder was considered in determining the severity of the claimant's impairment for purposes of Table 15. Therefore, ALJ Stuber awarded permanent disability benefits based on the 46 percent whole person impairment rating. We affirmed the award in Berumen v. Arapahoe County, W.C. No. 4-114-314 (October 27, 1999) ( Berumen II), and the Court of Appeals reviewed our decision in Arapahoe County v. Industrial Claim Appeals Office, (Colo.App. No. 99CA2151, July 13, 2000) (not selected for publication). The Court of Appeals remanded the matter with instructions for the ALJ to determine whether he "intended to assign some rating to the sleep disorder but inexplicably failed to do so, or whether the ALJ found no rating should be assigned." Relying on Morris v. Industrial Claim Appeals Office, supra, the court instructed that if "no rating should be assigned [to the sleep disorder], then the Panel's order shall be set aside, and the ALJ shall award benefits under the schedule." Thus, it appears the court concluded that the facts in the Berumen case are controlled by principles discussed in Morris v. Industrial Claim Appeals Office, supra.
After our decision in Berumen I, the claimant in this case filed a petition to reopen arguing that ALJ Wheelock's order of February 5, 1997, was based on a mistake of law. In essence, the claimant argued that Berumen I marked a change in law which requires a single whole person impairment rating in this claim.
However, in an order dated February 28, 2000, ALJ Schulman, denied the claimant's petition to reopen. ALJ Schulman ruled the claimant failed to show a mistake of law in ALJ Wheelock's ruling based on the subsequent announcement of Berumen I. Specifically, ALJ Schulman concluded that, prior to the announcement of Berumen, we held that conversion of bilateral upper extremity impairments to a single whole person impairment rating based on a sleep disorder "was not permissible under circumstances where the sleep disorder was not considered rateable." ALJ Schulman also found that, " Berumen simply reviewed a fact situation that had never been presented to ICAP in prior sleep disorder cases." Specifically, ALJ Schulman concluded that Berumen involved facts where a physician considered the sleep disorder when rating the claimant's impairment under Table 15. Consequently, ALJ Schulman concluded there was no mistake of law in ALJ Wheelock's order because the evidence before ALJ Wheelock did not implicate the Berumen fact pattern.
The claimant filed a timely petition to review ALJ Schulman's order. However, the petition to review merely asserts that ALJ Schulman erred in denying the petition to reopen, and contains no specific allegations of error. Further, the claimant failed to file a brief in support of the petition to review. Under these circumstances, the effectiveness of our review is limited because the claimant has not identified any specific factual or legal errors which might afford a basis for appellate relief.
A claim may be reopened where the evidence establishes that a prior order is inconsistent with a subsequent judicial interpretation of the controlling law. Section 8-43-303(1), C.R.S. 2000; Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). However, the decision to reopen is discretionary with the ALJ, and we may not interfere with the ALJ's determination unless the record demonstrates fraud or an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra. 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 contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
In the absence of any specific allegations of error, and based upon our review of the record, we perceive no abuse of discretion in ALJ Schulman's denial of the petition to reopen based on mistake of law. As ALJ Schulman determined, Berumen I did not represent a change in the "controlling law" with respect to ALJ Wheelock's prior order. ALJ Wheelock found as a matter of fact that the claimant's sleep disorder did not constitute a "functional impairment," and we upheld that finding because it was supported by substantial evidence. Moreover, ALJ Wheelock found the claimant's upper extremity impairment ratings under Table 15 were "based on the bilateral carpal tunnel syndrome, median nerve entrapment at the wrist level," not the sleep disorder. However, in Berumen, ALJ Stuber found the claimant's sleep disorder constituted a "functional impairment" not found on the schedule of disabilities. Thus, in Berumen, it was necessary to determine the legal effect of Morris v. Industrial Claim Appeals Office in a case where a functionally impairing sleep disorder was considered in rating the claimant's impairment under Table 15.
It follows the legal reasoning in Berumen I had no application to the facts found by ALJ Wheelock. Thus, ALJ Schulman correctly ruled that, whatever the merits of our decision in Berumen 1, the principles discussed there were not the "controlling law" with respect to ALJ Wheelock's order. In any event, it now appears the Court of Appeals has rejected our reasoning in Berumen, and decided that Morris is controlling. Thus, there was no mistake of law in ALJ Wheelock's ruling.
IT IS THEREFORE ORDERED that ALJ Schulman's order dated February 28, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed November 7, 2000 to the following parties:
Theresa Waite, 897 Mount Werner Circle, Colorado Springs, CO 80906
Mari Beth Ross, Claim Manager, Deluxe/Current, Inc., P. O. Box 64235, St. Paul, MN 55164
Barbara McDaniel, Travelers Indemnity Co. Aetna Casualty Surety Co., P. O. Box 173762, Denver, CO 80217-3762
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy