Opinion
W.C. No. 4-207-196
December 13, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) which reopened the claim and awarded additional workers' compensation benefits. We affirm.
On March 17, 1994, the claimant suffered admitted injuries to his head, neck, right wrist, torso and thighs when he slipped and fell face first into the back of a delivery truck . The injury was initially treated by Dr. Barclay who diagnosed a "post-concussive syndrome." The claim was subsequently closed pursuant to the filing of an uncontested final admission of liability dated July 29, 1994.
Section 8-43-303(1), C.R.S. 2001, provides that an ALJ may reopen a claim "at any time within six years of the date of injury," on the grounds of mistake or change in condition. The determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986).
On December 15, 1999, the claimant petitioned to reopen the claim alleging a mutual mistake of fact and a worsened condition. Before the ALJ, the respondent conceded the petition to reopen was filed within 6 years of the date of injury. However, the respondent argued that under § 8-43-303(1) a claim is barred from reopening unless the claim is adjudicated within 6 years of the date of injury. Because the claimant did not file an application for hearing until July 2000, the claim could not be adjudicated within 6 years of the date of injury. Consequently, the respondent moved to dismiss the petition to reopen for lack of jurisdiction.
Expressly relying on Mascitelli v. Giuliano and Sons Coal Co., 157 Colo. 240, 402 P.2d 192 (1965), the ALJ determined the filing of the petition to reopen tolled the statute of limitations. Therefore, the ALJ denied the respondent's motion to dismiss.
The ALJ also found the claimant was initially diagnosed with a "post-concussive syndrome" and that it was not until after the claim was closed that the claimant was diagnosed with a "traumatic brain injury." The ALJ determined the later diagnosis was qualitatively different from the original diagnosis. ( See Tr. p. 51); 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 to interpret the ALJ's written findings), and that the final admission did not contemplate the severity of the injury. Under these circumstances, the ALJ found the closure of the case was premised on a mutual mistake of material fact that the claimant had a simple post-concussive syndrome and not a traumatic brain injury with cognitive impairment, as subsequently discovered.
Further, the ALJ determined the claimant sustained his burden to prove his condition from the industrial injury worsened after July 1994. Therefore, the ALJ reopened the claim and granted the claimant's request for additional benefits.
I.
On review the respondent renews its contention the claim is barred from reopening. The respondent argues that because Mascitelli was decided under a predecessor statute which provided that the Workers' Compensation Act (Act) was to be "liberally" construed in favor of claimants," and the current law contains no similar language, Mascitelli is no longer good law. We disagree.
Mascitelli was decided under former § 81-14-19 C.R.S. 1953, which authorized the Industrial Commission to reopen a claim on the grounds of error, mistake or change in condition "at any time within six years from the date of the accident." The Mascitelli court noted that the applicable statute did not provide the exact point in time at which the six year limitation became effective. However, the court rejected the insurer's argument that the limitation barred a reopening unless the petition to reopen was adjudicated within 6 years of the date of injury. The Mascitelli court concluded that the claimant cannot control the date the Industrial Commission acts on a petition to reopen. The Mascitelli court reasoned that if the statute of limitations were controlled by the date the Industrial Commission acts on the petition to reopen, injured claimants would be left in a state of uncertainty and deprived of relief if the Industrial Commission failed or refused to act within the 6 year period. Therefore, the Mascitelli court concluded that a request to reopen the claim which was filed within 6 years of the date of injury tolled the statute of limitations regardless of whether the Industrial Commission acted on the request within that same time period.
As argued by the respondent, one tenet of the court's holding in Mascitelli was the prevailing rule of statutory construction that the Act was to be liberally construed to effectuate its humanitarian purpose of assisting injured workers. However, that was not the only tenet relied upon by the court. The court also noted that in many courts a pleading or motion is effective to stop the running of a statute of limitations. Thus, the court concluded that the claimant's filing of a notice which set forth his request to reopen the claim was sufficient to toll the statute of limitations without any action by the Industrial Commission.
In any case, we reject the respondent's contention that Mascitelli is no longer good law. Section § 8-43-201 C.R.S. 2001, provides that the "facts in a workers' compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer." The statute existed in its current form when the court announced Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 252 (Colo 1996), where the court expressly applied the rule that the Act "should be liberally construed to accomplish its humanitarian purposes of assisting injured workers and their families." The Supreme Court made a similar statement in Weld County School District RE-12 v. Bymer, 955 P.2d 550, 557 (Colo. 1998). See also Estate of Huey v. J.C. Trucking, Inc., 837 P.2d 1218, 1220 (Colo. 1992). Thus, the Supreme Court does not view § 8-43-201 as inconsistent with the rule of liberal construction. Rather, § 8-43-201 applies to the interpretation of "facts" or evidence. Consequently, Oqueda suggests that the rule of liberal construction and therefore, Mascitelli are still good law.
We also note that when the General Assembly does not amend a statute it must be presumed that General Assembly has endorsed court's interpretation of the statute. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994). Even though the Mascitelli court expressly recognized that the reopening statute "does not provide the exact point at which the six year limitation becomes effective," Ibid 402 P.2d at 193, the General Assembly has not substantially modified the applicable portion of the reopening statute since the court announced its decision in Mascitelli. To the contrary, the current statute does not state when the six year limitation is tolled. Under these circumstances, we presume the General Assembly does not disapprove of the court's construction of the statute in Mascitelli.
Nevertheless, the respondent contends Mascitelli is legally distinguishable from the circumstances presented here because under the current law a hearing must be scheduled within 80 to 100 days after the filing of an application for hearing. See § 8-43-209 and § 8-43-211 C.R.S. 2001. Accordingly, the respondent contends that, unlike the facts in Mascitelli, claimants can now control the date a petition to reopen is adjudicated. We reject this argument.
Admittedly, claimants can control the date an application for hearing is filed, and the applicable statutes require that a hearing be scheduled within 80 to 100 days. However, the claimant has no control over the precise docketing of the claim or whether any continuance is granted. Rather, claimants with the same date of injury who file applications for hearing eighty days before the expiration of the 6 year limitation would obtain different relief where one claim is docketed for hearing 80 days later and the other is set 100 days later. We are not persuaded the legislature intended this result. Therefore, we perceive no error in the ALJ's reliance on the holding in Mascitelli.
In reaching our conclusions we reject the claimant's contention that the respondent's argumesnts violate the parties' agreement for the dismissal of the respondent's "Motion to Dismiss." Contrary to the claimant's contention, the "agreement" pertained to the respondent's previously filed motion to dismiss under § 8-43-207(1)(n), C.R.S. 2001 [failure to prosecute], and not the respondent's subsequent motion to dismiss for lack of jurisdiction.
II.
The respondent also contends the ALJ erred in finding the claimant sustained his burden to prove grounds to reopen the claim. We disagree.
Because the ALJ's authority to reopen a claim is discretionary, we may not disturb the ALJ's determination in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ's determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
In determining whether the ALJ's findings of fact are supported by the evidence, we must defer to the ALJ's credibility determinations, and the probative weight he afforded the evidence found persuasive. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondent's arguments notwithstanding, there is substantial evidence in the claimant's testimony to support the ALJ's finding of a worsened condition. The claimant testified that many of his symptoms from the industrial injury "seemed to elevate or go further" after the claim was closed. (Tr. p. 27). He also stated that about 6 months after the injury he developed numbness in various parts of his body and that his memory, and temper control, gradually worsened. (Tr. pp. 24, 25, 28, 33).
The ALJ also reasonably inferred there was a mutual mistake of fact concerning the severity of the claimant's condition. The Intracorp evaluation dated March 31, 1994, indicates the claimant reportedly believed his diagnosis was post-concussive syndrome. Admittedly, the evaluation contains evidence Dr. Siegel mentioned a possible "mild head injury." The record also contains a hand written clinic note dated April 18, 1994, in which Dr. Siegel diagnosed "concussion syndrome/mild head injury." However, Dr. Siegel's dictation from that visit diagnosed a "very mild post-concussive syndrome" which was resolving. In that same report Dr. Siegel opined the claimant should make a full recovery. Similarly, Dr. Siegel's May 11, 1994 clinic note contains a diagnosis of "post-concussive syndrome, mild with excellent prognosis for full recovery." Under these circumstances, the ALJ could reasonably infer that at the time the claim was closed the claimant understood he suffered a mild post-concussive syndrome which was expected to resolve quickly and not a traumatic head injury which would require long term treatment. Moreover, these findings support the ALJ's finding of a mistake which justified reopening the claim.
The respondent's remaining arguments on this issue have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated November 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. 2001. 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 December 13, 2001 to the following parties:
William McElwain, 7432 S. Quail Circle, #1814, Littleton, CO 80127
Carmen Cooley, Federal Express, 2007 Corporate Plaza, 3rd floor, Memphis, TN 38132
Clinton Powell, RSKCo, 2650 Thousand Oaks Blvd., #2120, Memphis, TN 38118
Peter E. Morgan, Esq., 3333 S. Bannock, #800, Englewood, CO 80110 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy