Opinion
W.C. No. 4-379-770.
June 23, 2006.
FINAL ORDER
The claimant seeks review of an order dated February 21, 2006 of Administrative Law Judge Martinez (ALJ) that denied the claimant's request for penalties for an alleged failure to timely exchange medical records and failure to obey an ALJ's order. We affirm.
The claimant was injured on May 13, 1998, when a tree fell on him while he was employed as a logger. The claimant sustained serious injuries. ALJ Mattoon in an order dated October 13, 2005 ordered: "Respondents shall provide medical benefits to Claimant in the form of the recommended coronary angiogram." Findings of Fact, Conclusions of Law, and Order (Order) at 4 ¶ 4. In their responses to interrogatories posed by the claimant, the respondents stated that they provided medical services by paying for them and that respondents had not received any bill for the angiogram. The respondents further stated that when contacted by the claimant's counsel, on December 19, 2005, the adjuster did contact the clinic and authorize the angiogram.
The claimant sought penalties alleging the respondents failed to obey the order of ALJ Mattoon because they did not locate a medical provider and set up the appointment for the angiogram. However, the ALJ found the order did not specifically order the respondents to locate a provider and set up the appointment. The ALJ reasoned that there was already an authorized treating physician (ATP) and the ATP could have made the referral for the angiogram. The ALJ concluded that the claimant did not prove by the preponderance of the evidenced that the respondents violated the order.
On appeal the claimant contends the ALJ erred in not penalizing the respondents under § 8-43-304(1) for failure to comply with the order of ALJ Mattoon order to provide the angiogram because the claimant had to take the initiative to find a medical provider who was willing to perform the angiogram. The claimant argues that the respondents did nothing except authorize the treatment when requested to do so by the claimant. The claimant in his brief in support of his appeal argues that the physician, who recommended the angiogram, was no longer available to help the claimant locate a provider because he was no longer practicing in the Cortez area.
We initially note that the factual issue of whether the physician in question was still practicing medicine at the relevant time was not before the ALJ. We refuse to consider the factual assertions raised by the claimant for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 725 P.2d 171 (Colo.App. 1988).
Generally, the imposition of penalties under § 8-43-304(1) requires a two step analysis. First it must be determined whether a party has violated the Act in some manner, or failed to carry out a lawfully enjoined action, or violated an order. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If a violation is found, it must be determined whether the violator acted reasonably. Ordinarily, the existence of a violation and the reasonableness of the violator's conduct are issues of fact for determination by the ALJ. Pioneers Hospital v. Industrial Claim Appeals Office, 114 P.3d 97 (Colo.App. 2005); Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999). Thus, we must uphold the ALJ's determination of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005.
In the present case the claimant has failed to provide a transcript of the hearing and, therefore we are required to presume the ALJ's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The ALJ found that the respondents disclosed that they provided medical services by paying for them, but had not received a bill for the angiogram. Furthermore, an adjuster for the respondents contacted a clinic and authorized the angiogram. Order at 4, ¶ 13.
Moreover, the ALJ determined that the order of ALJ Mattoon did not specifically order the respondents to locate a provider and set up an appointment. In addition there was an ATP in place to make the referral for the angiogram. The ALJ therefore concluded that the claimant did not prove by the preponderance of the evidence that the respondents violated the order. Order at 8, ¶ 17. Furthermore, the ALJ's interpretation of the previous ALJ's order to provide an angiogram appears to conform to the respondents' obligation to furnish required medical benefits. See Grover v. Industrial Comm'n, 759 P.2d 705, 710-11 (Colo. 1988). Under these circumstances, we perceive no basis on which to interfere with the ALJ's determination that the claimant did not prove by the preponderance of the evidence that respondents had violated ALJ Mattoon's order.
The claimant next argues that the respondents should be penalized for failing to exchange a medical report authored by Dr. Bohachevsky. The claimant alleges the respondents violated W.C. Rule of Procedure XI(B)(2), 7 Code Colo. Reg. 1101-3 at 22 (currently found at W.C. Rule of Procedure 5-4(A)(5), 7 Code Colo. Reg. 1101-3 at 81). This rule provides that all medical reports shall be exchanged within 15 day of receipt.
The claimant asserts that the report of Dr. Bohachevsky dated April 1, 2005 must have been received by the respondents at some point near the time it was dated. The claimant asserted this report was not given to him as required by the rules but instead counsel for the claimant obtained the report on September 20, 2005. The respondents asserted that the report was not received by them until September 20, 2005, and it was received by them from the claimant's attorney. The report of Dr. Bohachevsky has a typed notation "Cc: Liberty Mutual, Attn: Steve Gabriel, Claim #972-190215" at its conclusion. This is followed by a hand written note "4/26/05 KW @2 pm." The claimant argues that the notation "Cc" on the bottom of the last page shows that a copy was sent to the claim's adjuster and the handwritten notation implies that the copies of the report were sent on April 26, 2005. See Order at 7, ¶ 11.
The ALJ found that there was no oral testimony at the hearing in regard to the date of sending or the date or receipt of any medical reports. Order at 4, ¶ 14. The ALJ also found there was no evidence that the report was ever mailed to insurer and there was no explanation as to what the notation at the bottom of the report meant. The ALJ determined that since there was no evidence that the report was actually mailed to the insurer the presumption of mailing or mail delivery did not arise. Order at 7, ¶ 12. Based on these findings of fact the ALJ denied the claims for penalties based upon allegations of failure to timely exchange a medical record.
Since no transcript was prepared we are again required to presume the ALJ's findings of fact are supported by substantial evidence in the record. Nova, supra. The ALJ found that there is no evidence the April 1, 2005, report was ever mailed to the insurer, no evidence of any address used or fax number used and no explanation that as to what the notation at the bottom of the report meant. The ALJ concluded that there is no presumption that the report was ever sent to the insurer prior to September 20, 2005.
As the ALJ recognized, the law creates a rebuttable presumption that a properly addressed letter deposited in the mail with sufficient postage reached the addressee. First National Bank of Denver v. Henning, 112 Colo. 523, 150 P.2d 790 (1944). However, when the evidence is conflicting as to whether the letter was mailed initially, the presumption does not arise and the conflict must be resolved by the trier of fact. National Motors, Inc. v. Newman, 29 Colo.App. 380, 484 P.2d 125 (1971). The foundational requirements for the presumption may be established by evidence of business custom or practice. See National Motors, Inc. v. Newman, 29 Colo. App. 380, 484 P.2d 125 (1971).
In our opinion the ALJ did not err in determining that the presumption of mailing or mail delivery did not arise in this case.
Whether the report was mailed is a question of fact. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Although the factual issues may have been resolved differently, there is support in the record for the ALJ's finding, and we are bound by his determination. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). We perceive no error in the ALJ's conclusion that the claimant failed to prove a violation of the rule that requires exchange a medical reports and so declined to impose penalties under § 8-43-304, C.R.S. 2005.
IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Freddie Wilson, Crosscut Logging, Cortez, CO, Steve Gabriel, Liberty Mutual Group-Colorado, Englewood, CO, Robert C. Dawes, Esq., Durango, CO, (For Claimant).
David G. Kroll, Esq., Denver, CO, (For Respondents).