Amerigas Propane and Indemnity Insurance Company of North America, Petitioners,
Industrial Claim Appeals Office of the State of Colorado and Victor England, Respondents.
Announced April 21, 2016.
Industrial Claim Appeals Office of the State of Colorado WC No. 4-907-349
Lee Kinder, LLC, Joshua Brown, Denver, Colorado, for Petitioners.
No Appearance for Respondent Industrial Claim Appeals Office.
The Elliot Law Officers, Alonit Katzman, Mark D. Elliot, Arvada, Colorado, for Respondent Victor England.
¶ 1 Should an administrative law judge reopen a settlement of a workers' compensation claim on the grounds of mutual mistake of material fact if (1) the worker later discovered an injury that was unknown at the time of the settlement and that was related to the original injury; and (2) the settlement agreement clearly stated that the worker would forever waive his right to ask his employer for compensation for any such unknown injuries? Under the facts of this case, we conclude that the answer to this question is "no."
¶ 2 The worker in this case, Victor England, was injured while working for the employer, Amerigas Propane. (Amerigas's insurer, Indemnity Insurance Company of North America, is also a party to this case. Because the insurer's interests are aligned with Amerigas's interests for the purposes of this appeal, we shall refer to them collectively as "the employer."). The worker filed a claim for compensation.
¶ 3 The worker and the employer agreed to settle the claim. The worker later moved to reopen the claim. An administrative law judge (ALJ) agreed with the worker's contentions, and she reopened the claim. The employer appealed the ALJ's order to a panel of the Industrial Claim Appeals Office. The Panel affirmed.
¶ 4 The employer then filed this appeal. We set aside the order because we conclude that the Panel's decision affirming the ALJ's order reopening the claim was not supported by the applicable law.
¶ 5 The worker, a truck driver, fell on some ice while he was making a delivery for the employer in December 2012. He seriously injured his right shoulder. The employer admitted that this injury was related to the worker's job.
¶ 6 Surgeons operated on the shoulder twice to repair the injury, once in February of 2013 and once in May of the same year. The February surgery was significant. It was a total shoulder replacement. The worker's shoulder dislocated after the first surgery, so the surgeons operated again in May to correct that problem.
¶ 7 In September 2013, the worker and the employer agreed to settle the worker's claim. The worker had not yet reached maximum medical improvement, so he had not received a permanent impairment rating. He nonetheless decided to settle his claim.
¶ 8 The worker and the employer executed a standard written settlement agreement that the Division of Workers' Compensation had previously approved to be used in all workers' compensation settlements. The worker and the employer were represented by attorneys when they negotiated and then executed the agreement.
¶ 9 The agreement contained several conditions that are pertinent to this appeal.
¶ 10 The introductory paragraph stated that, because the parties wanted "to avoid the expense and uncertainty of litigation, " they "wish[ed] to FOREVER" settle the worker's claim.
¶ 11 Paragraph one described the "alleged injuries" that the agreement covered. They were "cervical pain strain sprain"; "bilateral shoulder pain"; "thoracic pain strain sprain"; and "lumbar pain strain sprain." Paragraph one also stated that "[o]ther disabilities, impairments and conditions that may be the result of these injuries . . . but that are not listed here are, nevertheless, intended by all parties to be included in and resolved FOREVER by this settlement."
¶ 12 The employer paid the worker $35, 000.
¶ 13 Paragraph four of the agreement stated: "The parties stipulate and agree that this claim will never be reopened except on the grounds of fraud or mutual mistake of material fact."
¶ 14 Paragraph six read:
[The worker] realizes that there may be unknown injuries, conditions, diseases or disabilities as a consequence of these alleged injuries or occupational diseases, including the possibility of a worsening of the conditions. In return for the money paid or other consideration provided in this settlement, [the worker] rejects, waives and FOREVER gives up the right to make any kind of claim for workers' compensation benefits against [the employer] for any such unknown injuries, conditions, diseases, or disabilities resulting from the injuries or occupational diseases, whether or not admitted, that are the subject of this settlement.
¶ 15 Paragraph seven stated that the worker understood that the settlement would be final. Once it was approved, the settlement would "FOREVER close all issues" relating to his claim.
¶ 16 Paragraph eleven stated that the worker had "reviewed and discussed" the settlement's terms with his attorney, that he had been "fully advised, " and that he understood the rights that he was giving up by settling the claim.
¶ 17 About a month after the ALJ had approved the settlement, the worker decided to see his doctor because he had been experiencing a lot of pain in his shoulder since the May surgery. The doctor x-rayed the shoulder, and the x-ray showed that there was a fracture in the right scapula. Up to this point, no one knew that this fracture existed.
¶ 18 The doctor developed a theory to explain the fracture. He thought that it had been caused by a screw that had been inserted in the shoulder during the second surgery. ...