Opinion
W.C. No. 4-688-233.
December 20, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Friend dated August 20, 2007 that imposed penalties against her in the total amount of $5,900 as a result of her failure to provide the respondents with executed medical release. We affirm.
This matter proceeded to hearing on the respondents' request for penalties against the claimant based on alleged violations of both a rule and an order. The attorneys appeared at the hearing, but apparently provided no testimony. Instead, the ALJ received exhibits and subsequently issued his Findings of Fact, Conclusions of Law, and Order (Order), which reflects the following findings. The claimant sustained an admitted injury on April 21, 2006. An authorized treating physician at Concentra placed her at maximum medical improvement and the respondent insurer filed a final admission of liability on July 28, 2006. The claimant requested a Division-sponsored independent medical examination (DIME). The DIME physician issued a report dated March 14, 2007, in which he opined that the claimant was not at maximum medical improvement and recommended an arthrogram of her left wrist.
The claimant returned to another authorized treating physician, Dr. Greenslade, on April 9, 2007. However, Dr. Greenslade wrote in a report that she was releasing the claimant from care and, also, that the claimant remained at maximum medical improvement. The claimant's counsel subsequently wrote to the respondents' counsel on April 9, 2007, demanding that a new treating physician be agreed upon, and advising opposing counsel that he had filed an application for hearing on the issue of a change of physician. The respondents' counsel wrote in response and denied the claimant's demand for a new treating physician. However, the respondents' attorney suggested a "Samms' conference," to which the claimant's attorney replied that he had "no desire, whatsoever, to speak with Dr. Greenslade." Claimant's counsel then wrote to Dr. Greenslade on April 24, 2007, and advised her that neither she nor Concentra was to communicate with the respondents. The letter also advised Dr. Greenslade that all medical releases given to Concentra were revoked. The respondents' attorney wrote back to the claimant's counsel on May 9, 2007 and requested that the claimant provide medical releases pursuant to the Workers' Compensation Rules of Procedure. He also added as an issue for hearing the matter of penalties for refusal to provide medical releases. An arthogram of the claimant's left wrist was performed on June 4, 2007.
On July 3, 2007, ALJ Stuber struck from hearing the issue of authorized provider and ordered the claimant to provide to Concentra within ten days of the date of his order a fully executed authorization for release of medical information. The claimant moved for reconsideration to reinstate the issue of a change of physician. In support of his motion to reconsider the claimant asserted, among other things, that there was no need to communicate with Dr. Greenslade because she had placed the claimant at maximum medical improvement. Another ALJ denied the claimant's motion to reconsider.
This matter then proceeded to hearing. At the time of the hearing the claimant had not provided a medical release to Concentra. The ALJ determined that the claimant's failure to provide the release violated both ALJ Stuber's order and W.C. Rule of Procedure 5-4(C), 1101-3. The ALJ determined that the medical release was necessary in light of the likelihood of litigation concerning the claimant's request to change physicians, as well as the potential for litigation concerning maximum medical improvement and medical benefits. He inferred that the claimant sought to hinder the respondents in their efforts to litigate the claimant's request to change physicians and noted a "pattern of misconduct" on the part of the claimant. The ALJ assessed daily penalties against the claimant pursuant to § 8-43-304, C.R.S. 2007, for three separate time periods and in increasing amounts ranging from $20 to $100, for a total of $5,900.
The first time period ran from April 24, 2007, when the claimant revoked her medical releases, to May 24, 2007, representing the date that was 15 days from the date of the respondents' request for a release pursuant to Rule of Procedure 5-4(C), 7 Code Colo. Reg. 1101-3, at 14. The ALJ assessed a $20 daily penalty for this time period. The second period ran from May 24, 2007, to July 13, 2007, the date by which the claimant was to provide Concentra with an executed release pursuant to ALJ Stuber's order. The ALJ assessed a $40 daily penalty for this time period. The third and final period ran from July 13, 2007, to August 15, 2007, on which date this matter went to hearing and by which time the claimant had still not provided a medical release to the respondents. The ALJ assessed a $100 daily penalty for this final time period.
The claimant asserts on appeal, as she did before the ALJ, that any requirement on her part to provide an authorization for medical information ended when Dr. Greenslade, an authorized treating physician, placed her medical condition at maximum medical improvement. It is true that a finding of maximum medical treatment by an authorized treating physician may result in the termination of a claimant's medical benefits. See Stefanski v. Industrial Claim Appeals Office, 128 P.3d 282, 283 (Colo. 2005) (employer filed final admission of liability terminating temporary disability and medical benefits after authorized treating physician found claimant at maximum medical improvement, but subsequently reinstated benefits after DIME opinion to contrary), aff'd sub nom. Sanco Industries v. Stefanski, 147 P.3d 5 (Colo. 2006). However, the posture of this case during the dispute over medical releases suggests that further proceedings were anticipated by the parties.
The ALJ determined that the respondents needed to obtain reports from Dr. Greenslade and Concentra:
It is unclear from Dr. Greenslade's April 9, 2007, report that she considered the opinion and recommendations of the DIME physician. If she did, Respondents reasonably would need to inquire as to whey [sic] she did not agree with the opinion and recommendation of the DIME physician. If Dr. Greenslade did not consider the DIME opinion, Respondents reasonably would need to ask Dr. Greenslade to consider the DIME report, and to state if that may change her opinion on MMI or the need for further treatment. Claimant had filed an application for hearing seeking a change of physician. It would appear that litigation is likely to follow on the issue of MMI and medical benefits after MMI.
Order at 4-5, ¶ 6. The ALJ's analysis appears to be consistent with the claimant's perception of the status of her claim according to the letter dated April 24, 2007, from the claimant's counsel to the respondents' counsel. In that letter the claimant's attorney advises opposing counsel that "[if] Claimant is at MMI, you have no need to speak to the doctor." However, he goes on to explain how he thought the matter needed to proceed. The claimant's attorney asserted that the respondents are obligated to "return the Claimant to the DIME to see if she really is at MMI" because "Dr. Greenslade has not re-opined MMI." Exhibit R. The recommended approach of the claimant's attorney is consistent with the Colorado Supreme Court's announcement in Williams v. Kunau, 147 P.3d 33 (Colo. 2006), in which the court determined that no final admission of liability could be filed before the claimant was returned for a follow-up DIME examination and determination of maximum medical improvement in the event that a DIME physician initially determines that the claimant has not reached maximum medical improvement. We further note that the claimant referred to Williams v. Kunau in support of her motion to reconsider ALJ Stuber's order striking from hearing the issue of a change of physician. The ALJ's finding that the respondents had a need for a medical release from the claimant is well-founded.
Moreover, the ALJ made the corresponding conclusion that it was "objectively unreasonable" for the claimant to revoke the previous medical releases, subsequently refuse to provide the respondents with a medical release, and not obey ALJ Stuber's order. Order at 5, ¶ 11. The claimant's failure to comply with ALJ Stuber's order without a rational argument based in law or fact supports the imposition of penalties. See Jiminez v. Industrial Claim Appeals Office, 107 P.3d 965, 967 (Colo.App. 2003) (reasonableness of conduct in defense of penalty claim predicated on rational argument based in law or fact). But see Pioneers Hospital of Rio Blanco County v. Industrial Claim Appeals Office, 114 P.3d 97, 100 (Colo.App. 2005) (conduct examined to determine whether merely unreasonable without consideration of whether conduct based on rational argument).
The claimant also asserts that the record lacks evidence to support the ALJ's determination that the respondents met their burden to prove an entitlement to penalties based on an alleged violation of ALJ Stuber's order. It is generally not necessary for the party seeking penalties to prove that the violator knew or reasonably should have known they were in violation. All that is necessary is that the party seeking penalties prove the putative violator acted unreasonably under an objective standard. See Jiminez v. Industrial Claim Appeals Office, supra; Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). In order to impose a penalty under § 8-43-304(1), it must be found that there was a violation of an order, and that the violation was not objectively reasonable. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). Thus, the ALJ must determine whether the claimant offered a reasonable factual or legal explanation for its actions. Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999). Determination of these issues is for the ALJ as fact finder, and we may not interfere if the order is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Pueblo School District No. 70 v. Toth, supra.
ALJ Stuber entered an order on July 3, 2007, that struck from hearing the issue of authorized provider and instructed the claimant to provide an authorization for release of medical information for Concentra within ten days of the date of the order. We take administrative notice of ALJ Stuber's order. See Cardenas v. Loveland Foods, W.C. Nos. 3-565-309 3-719-705 (December 29, 1988) (taking administrative notice of order in Court of Appeals file). ALJ Friend subsequently found that the claimant had not provided a corresponding medical release by the date of the hearing under consideration. Order at 3, ¶ 12. Respondents reply that the claimant's failure to provide a transcript in support of her appeal requires us to presume that the ALJ's findings are supported by evidence. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). However, we note the ALJ's order indicates that no testimony was received at the hearing. We therefore decline to rely on the lack of a transcript to establish sufficient evidence to support the ALJ's findings. Nonetheless, the ALJ's order also indicates that Exhibits M through U were admitted. Among these exhibits is correspondence between the opposing counsel.
The claimant's counsel revoked the claimant's medical releases by letter dated April 24, 2007. Exhibit R at 84. The respondents' attorney advised the claimant's attorney by a letter dated June 18, 2007, that he had not received a response to his request for executed releases. Exhibit T. He subsequently advised the claimant's counsel by a letter dated July 5, 2007, that he sought to introduce at the hearing his letter of June 18, 2007. Exhibit U. The ALJ subsequently admitted the respondents' documentary evidence at the hearing. In applying the substantial evidence test to determine whether the evidence supports the ALJ's findings of fact, we view the evidence as a whole and in the light most favorable to the prevailing party. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). In addition, "if two equally plausible inferences may be drawn from the evidence, we may not substitute our judgment for that of the ALJ." Id. We conclude that the ALJ could reasonably infer from such evidence that the claimant had not provided the respondents with executed medical releases by the time of the hearing on August 15, 2007.
The claimant also challenges the reasonableness of the amount of penalties assessed against her. She asserts that the ALJ erred in assessing penalties against the claimant in an amount that allegedly exceeds her annual income. This assertion requires us to consider information not contained in the record, which we are unable to do. See § 8-1-1—2(2), C.R.S. 2007 (Panel has duty and power to conduct administrative appellate review). See also City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (Panel's review restricted to evidence before ALJ).
Concerning the general reasonableness of the amount of penalties assessed against her, the right to impose a fine having been proved, the claimant bore the burden to establish that the fine is grossly disproportionate. Pueblo School Dist. No. 70 v. Toth, supra. Furthermore, we consider the assessment of the statutory penalty under an abuse of discretion standard of review. Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323, 325 (Colo.App. 2005). Under this standard, we must determine whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School Dist. #1, 710 P.2d 1095, 1098-99 (Colo. 1985). Because the ALJ's authority is discretionary, we may not disturb his determination of the amount of the penalty to be imposed in the absence of fraud or an abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
Factors for determining whether a penalty is grossly disproportionate can include the degree of reprehensibility of defendant's misconduct, the disparity between the harm or potential harm suffered by the aggrieved party and the penalty, and the difference between the penalty imposed and the amount of penalties available or imposed in comparable cases. See Associated Business Products, 126 P.3d at 326 (Colo.App. 2005) (applying Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 425). In this case, the ALJ considered factors such as the extent of harm to the respondents, the duration and type of violation, the claimant's motivation and mitigation, and whether there was a pattern of misconduct. Order at 5, ¶ 12. He determined that the claimant's actions harmed the respondents by delaying the "ultimate resolution of the claim," failed to mitigate, and displayed a pattern of misconduct. Order at 6, ¶ 13. Furthermore, the ALJ applied a progressive amount of penalties according to the length of time passing since the claimant first revoked her authorizations for the release of medical information. The ALJ's imposition of penalties is in accordance with applicable law. See § 8-43-301(8). See also, Matthys v. City of Colorado Springs, W.C. No. 4-662-890 (April 2, 2007) (upholding penalty against claimant for failing to execute authorizations for release of medical information).
The claimant's remaining arguments do not persuade us to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated August 20, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
MISTY D CASE, COLO SPRINGS, CO, (Claimant).
MANPOWER INTERNATIONAL, INC., Attn: HEIDI SHIRTS, COLO SPRINGS, CO, (Employer).
INS CO OF THE STATE OF PENNSYLVANIA, Attn: TERI ESS-JACOBS, C/O: CAMBRIDGE INTEGRATED SVCS GROUP, PHOENIX, AZ, (Insurer).
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, ESQ., COLO SPRINGS, CO, (For Claimant).
MCCREA BUCK, LLC, Attn: TRENT E. REINBARGER, ESQ., DENVER, CO, (For Respondents).