FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his petition to reopen the claim, and denied his claim for mileage reimbursement. We affirm.
It is necessary to review the extensive procedural history of this case in order to understand the issues involved. The claimant sustained a compensable injury in June 1993. The respondent-employer returned the claimant to light-duty work. However, the claimant was discharged, allegedly for cause, on July 15, 1993.
In an order dated December 23, 1993, the ALJ found that the claimant was at fault for the separation from employment, and therefore, not entitled to temporary disability benefits after July 15. The claimant appealed the December 23 order to us, arguing that the ALJ erred in finding that he was at fault for the separation from employment. Further, the claimant argued that, regardless of the fault issue, he was entitled to temporary partial disability benefits based on the difference between his pre-injury average weekly wage and the average weekly wage which he earned in the light-duty employment.
In an order dated December 6, 1994, we upheld the ALJ's determination that the claimant was at fault for the separation. However, we agreed with his argument concerning temporary partial disability benefits, and modified the ALJ's order accordingly.
The claimant then appealed our December 6 Order to the Court of Appeals. The claimant apparently argued that the ALJ applied an incorrect legal standard in assessing "fault," and that Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), should be overruled.
While the claimant's appeal was pending, the Supreme Court announced its opinion in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Following the announcement of that decision, the claimant accepted dismissal of his appeal by the Court of Appeals and elected to file a petition to reopen the claim with the ALJ. The claimant reasoned that PDM mandates reconsideration of the denial of temporary disability benefits after July 15, 1993.
However, in an order dated May 24, 1996, the ALJ denied the claimant's petition to reopen. Citing Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967), the ALJ noted that she was not obliged to grant a petition to reopen where the claimant "neglected to exercise his right of direct appeal." Thus, the ALJ concluded that the alleged mistake of law does not warrant reopening in view of the fact that the claimant voluntarily dismissed his pending appeal in the Court of Appeals.
It is also undisputed that the claimant's treating physician prescribed a six-month health club membership. The claimant submitted bills for travel to the health club, but the ALJ denied them. In support of this determination, the ALJ found that the claimant did not utilize the health club membership to perform his "independent exercise program," but merely traveled to the health club to sit in the sauna.
I.
On review, the claimant contends that the ALJ erred in refusing to reopen the claim for temporary total disability benefits from July 15, 1993 to November 9, 1993, the date of maximum medical improvement. The claimant reasons that the ALJ abused her discretion in denying the petition to reopen because he perfected a timely appeal with the Court of Appeals (from our December 6 order), and because the PDM decision would have required the Court of Appeals to remand the case for a hearing on the cause of the claimant's wage loss after July 15. The claimant asserts that a petition to reopen "was the proper way to proceed" because the matter is "so obviously controlled" by PDM. We are not persuaded.
Section 8-43-303(1), C.R.S. (1996 Cum. Supp.), permits an otherwise final claim to be reopened based upon a mistake of law. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). However, reopening is permissive, and the question of whether an alleged mistake justifies reopening is a matter committed to the sound discretion of the ALJ. Renz v. Larimer County School District Poudre R-1, supra.
Because reopening is discretionary with the ALJ, we may not interfere with her decision in the absence of fraud or clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra. An abuse of discretion does not occur unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Further, in deciding whether a mistake warrants reopening, it is proper for the ALJ to consider whether the issue could have been avoided had a party availed itself of direct administrative and judicial appeals. See Industrial Commission v. Cutshall, supra; Klosterman v. Industrial Commission, 694 P.2d 873 (Colo.App. 1984) .
The claimant's argument notwithstanding, we cannot say that the ALJ's refusal to reopen the claim is beyond the bounds of reason. The ALJ reasoned that the claimant failed to prosecute his direct appeal, and sought to utilize the petition to reopen process as a collateral method of attacking the denial of temporary disability benefits. The claimant himself admits that, prior to dismissing his appeal, he was fully aware of the Supreme Court's ruling in PDM Molding, Inc. v. Stanberg, but elected not to pursue that argument before the Court of Appeals.
Moreover, the ALJ was not required to assume that the ruling in PDM Molding, Inc. v. Stanberg, would have compelled the Court of Appeals to set aside our December 6 order and remand the matter to the ALJ. Considering the record before us, it is debatable whether the claimant ever raised the precise issue which was determined in PDM, and which he alleges would have required the Court of Appeals to remand the matter. Thus, the court might have concluded that the claimant waived the issue. The ALJ is not required to speculate concerning what action the Court of Appeals might, or might not, have taken had the case proceeded to a final determination.
The claimant also argues that his wage loss, subsequent to July 15, 1993, was necessarily caused by the industrial injury. However, we need not consider the propriety of the ALJ's ruling on this issue since we have upheld her refusal to reopen the claim.
II.
The claimant next contends the ALJ erred in refusing to order the respondents to pay mileage for his trips to and from the health club. The claimant argues that the real issue is whether the evidence supports the ALJ's implied conclusion that travel to the health club was not "reasonable and necessary." The claimant asserts that the ALJ's determination of the issue is not supported by the record because there is no evidence concerning whether or not the claimant was required to perform exercises. We are not persuaded.
There can be no doubt that mileage expenses which are incurred as an incident of obtaining reasonable and necessary medical treatment are compensable. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988). However, the question of whether the expense incurred for particular medical services is reasonable and necessary is one of fact for resolution by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Because the reasonableness and necessity of treatment is a question of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). The substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ could plausibly infer from the reports of Dr. Tyler that the purpose of the health club membership was to assist the claimant in exercising. Dr. Tyler's July 11, 1995 report describes the health club membership as allowing for "continuation of an independent exercise program outside of the formal physical therapy center." The July 27, 1995 report refers to the health club membership as permitting "continuation of his independent exercise program." Finally, the August 16, 1995 report mentions that the claimant's physical therapist plans to meet him at the health club "to go over the equipment."
Under these circumstances, the ALJ reasonably inferred that the purpose of the health club membership prescription was to encourage the claimant to perform exercises which would assist in his recovery and further the benefits of physical therapy. Thus, the claimant's own admission that he did not exercise, but merely used the sauna, supports the ALJ's conclusion that the claimant failed to utilize the health club membership for the intended purpose. Therefore, the record supports the ALJ's determination that the expense incurred in traveling to the health club was not incident to the provision of reasonable and necessary medical treatment. The mere fact that the ALJ did not know the particular exercises recommended by the physician does not vitiate the ALJ's conclusion that the purpose of the prescription was to facilitate exercise.
IT IS THEREFORE ORDERED that the ALJ's order dated May 24, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 3, 1997 to the following parties:
Chae S. Lee, 38 Minden Circle, Colorado Springs, CO 80906
Sealy Corporation, 10th Flr., Halle Bldg., 1228 Euclid Ave., Cleveland, OH 44115-1886
Frances Wood, Hartford Ins. Co., P.O. Box 22815, Denver, CO 80222
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
By: _________________________________________