4-319-647 (1998). CRISTAL MINSER-CALLENDER (Final Order 1).

• Case Date: August 13, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-319-647 (1998). CRISTAL MINSER-CALLENDER (Final Order 1) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF CRISTAL MINSER-CALLENDER, Claimant, v. CHECKER AUTO PARTS, Employer, and AIG CLAIM SERVICES, INC., Insurer, Respondents.W. C. No. 4-319-647 FINAL ORDER The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which granted the claimant's petition to reopen based on mistake of fact. The respondents contend the evidence is insufficient to establish a mistake of fact, insufficient to support the award of temporary partial disability benefits, and that the ALJ erroneously failed to reduce the claimant's compensation by fifty percent due to the claimant's violation of safety rules. We affirm. On October 30, 1996, the claimant sustained compensable injuries when the vehicle she was driving struck the rear of another vehicle. Contrary to the employer's safety rules, the claimant was not wearing a seat belt at the time of the accident, and she testified that she was exceeding the speed limit. Moreover, the ALJ found that the claimant negligently failed to maintain a proper lookout, which was contrary to the employer's rule that "delivery drivers must drive safely and courteously, complying with all traffic regulations." However, the ALJ credited the claimant's testimony that at the time of the accident she was experiencing grief and depression over the death of her daughter, and was taking antidepressant medication. The ALJ found that these circumstances caused the claimant to experience "concentration and memory problems." Following the injury, the claimant began treating with Dr. Salter. As of November 12, 1997, Dr. Salter imposed restrictions which precluded the claimant from working as a delivery driver. However, the claimant returned to modified work as a cashier. On November 19, 1996, the claimant was scheduled to be examined by Dr. Salter. However, the claimant failed to appear, and Dr. Salter sent a letter requesting the claimant to reschedule the appointment. The claimant rescheduled her appointment for November 22, 1996, but again failed to appear. On December 2, 1996, Dr. Salter sent the claimant a letter noting that the claimant failed to appear for appointments scheduled on November 19 and November 22. Consequently, Dr. Salter stated that it was "presumed" the claimant reached maximum medical improvement (MMI) with no permanent impairment on November 19, 1996. The respondents then filed a final admission of liability, dated December 9, 1996, terminating the claimant's temporary disability benefits. In July 1997 the claimant was again examined by Dr. Salter for headaches and neck pain. Dr. Salter attributed some of these problems to the industrial injury, and consequently, the claimant filed a petition to reopen based on error or mistake. At the hearing, Dr. Salter testified that his December 1996 letter placing the claimant at MMI did not constitute a "medical opinion," but was "just based on no-show, the fact that she was not there for further evaluation and treatment." (Tr. p. 10). Further, Dr. Salter opined the claimant was not at MMI as of July 24, 1997...