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Berg v. Industrial Claim Appeals Office of the State of Colorado8/11/2005
'n v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967)(claimant was not entitled to have award reopened as a matter of right upon showing of mistake, and refusal to do so did not constitute an abuse of discretion where claimant failed to seek timely review of award); see also Ames v. Indus. Claim Appeals Office, 89 P.3d 477 (Colo. App. 2003)(holding ALJ had authority to hear a change of physician request post-MMI where there was no evidence to suggest the request was a constructive challenge to the treating physician's finding of MMI).
To the extent the statement in Cordova v. Industrial Claim Appeals Office, supra, that an original MMI determination may never be questioned for purposes of reopening, may be read to support the Panel's determination, we consider it dictum and not controlling. See Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 n.2 (Colo. 1999)("Dictum is not the law of the case and is not controlling precedent."). In Cordova, the issue to be resolved was whether a DIME submitted in support of a petition to reopen should have conclusive effect. The division affirmed the Panel's determination that under such circumstances, the opinion of a DIME physician would be relevant evidence regarding whether the claimant's condition had worsened, but that it would carry no special weight. The Cordova case, therefore, did not concern whether reopening based on mistake was possible where MMI was resolved by an uncontested DIME.
Here, neither party disputes that the issue of MMI was ripe for hearing at the time of claimant's surgery, that claimant had previously questioned the DIME physician's MMI determination, or that claimant's failure to properly contest employer's FAL resulted in closure of the case not long before claimant filed his petition to reopen. The undisputed facts reveal, however, that although claimant disagreed with the MMI finding and the course of treatment to that point, it was not until after his surgery that the true extent of his herniated disc became known. Further, claimant testified that he recuperated from the surgery for two weeks, that his symptoms were still abating at the time of the hearing on his petition to reopen, that he did not return to the neurosurgeon until a month after the surgery, and that he did not fully understand the surgical findings until he received a report from the neurosurgeon in May 2003. Further, the record contains no evidence to support employer's argument that claimant made the tactical decision to let his claim close to avail himself of the lower burden of proof.
Accordingly, we are satisfied that the ALJ did not abuse her discretion in granting the petition to reopen based upon mistake.
The Panel's order is set aside, and the case is remanded for reinstatement of that part of the ALJ's order granting the petition to reopen. On remand, the Panel may consider the other issues raised by employer in its petition to review.
JUDGE TAUBMAN and JUDGE KAPELKE concur.
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