Opinion
W.C. No. 4-740-549.
April 27, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated November 23, 2010, that denied the claimant's request for medical impairment benefits and denied the claimant's request for medical benefits after maximum medical improvement (MMI). We affirm.
A hearing was held oh several issues, including the claimant's right to medical impairment benefits and to medical benefits after maximum medical improvement under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Another issue litigated at the hearing was the claimant's request for penalties for the employer's alleged failure to insure. However, the penalty issue was addressed in a separate order arid was separately appealed. The order under review here addressed only the issues of permanent partial disability benefits and Graver medical benefits. Following the hearing the ALJ entered factual findings that for purposes of our order may be summarized as follows. The claimant sustained a compensate aggravation of her pre-existing low back condition and reached maximum medical improvement on April 15, 2008. On August 14, 2008 a Division-sponsored independent medical examination (DIME) was preformed by Dr. Burkhardt, who reported that the claimant was not at maximum medical improvement. In a subsequent order following a hearing, the ALJ determined that the claimant was at maximum medical improvement. That order was affirmed on August 6, 2009.
The ALJ also found that until January 31, 2009 Sedgwick CMS adjusted the file for the insurer and after that date responsibility for the file was transferred to Helmsman, which notified the claimant, his attorney, and the Division that it had assumed the adjusting duties for the file. On November 17, 2009 the Division notified Dr. Burkhardt that a "follow up" appointment was necessary to address the issues of maximum medical improvement and medical impairment. On November 24, 2009 the Division sent Dr. Burkhardt a letter clarifying that the issue of maximum medical improvement had been administratively determined and that the only issue for her to address was permanent impairment. Copies of these letters were sent to the claimant's attorney, as were copies of the medical reports submitted by the respondents to Dr. Burkhardt. On February 22, 2010 she issued a DIME report and an "addendum report." The DIME report was mailed to the Division, to the claimant's attorney and to an adjuster at Sedgwick CMS, but was not mailed to the employer, the respondents' attorney or any adjuster at Helmsman. On March 12, 2010 the Division issue a notice of the completion of the DIME, which contained the advisement that the carrier must either admit liability consistent with the report or file an application for hearing. The respondents did not receive the addendum report until April 29. 2010. when they filed an application for hearing. They did not receive a copy-of the DIME report until the date of the hearing, which was August 26, 2010. The DIME report stated that the claimant had sustained permanent impairment equal to 23 percent of the whole person.
The ALJ found that there was a lack of objective evidence of a "determinable medical problem" and that there was significant evidence of "overreaction, pain magnification, symptom magnification, and non physiologic findings." The ALJ weighed the competing opinions of Dr. Burkhardt and Dr. Burris who testified that there was no objective evidence of medically determinate physical or mental impairment resulting from the claimant's compensable injury. The ALJ credited the opinions of Dr. Burris and concluded that it was highly probable that the opinion of Dr. Burkhardt was incorrect. The ALJ also noted that neither Dr. Burris nor Dr. Burkhardt recommended maintenance medical treatment. Based upon his findings, the ALJ concluded that the claimant had, sustained no medical impairment's a result of the compensable injury and he denied Grover medical benefits.
The ALJ also rejected the claimant's argument that the respondents had not contested the DIME report within the necessary time period and that they therefore should be bound by the impairment rating. Since the hearing officer found that the respondents had not received the report until, at the earliest, April 29. 2010, their application for hearing filed on that date was timely.
The claimant appealed and argues that the ALJ erred in concluding that the respondents' application for hearing challenging the DIME report was timely. The claimant also argues that the ALJ erred in concluding that the DIME report of Dr. Burkhardt was overcome on the issue of the claimant's medical impairment, and that the ALJ erred in denying Grover medical benefits.
I.
The claimant first argues that the ALJ erred in concluding that the respondents' application for hearing disputing the DIME report was timely. Specifically, although the claimant appears to concede that the respondents did not receive the addendum to the DIME report until April 29, 2010, when they filed an application for hearing, the claimant nonetheless argues that the respondents' duty to object to the DIME report was triggered by the Division's issuance of a notice that the DIME was complete. We are unpersuaded by this argument.
The ALJ correctly noted that the applicable law regarding the respondents' duty to react to the DIME report is set forth in § 8-42-107.2(4), C.R.S. That subsection provides that "[w]ithin thirty days after the date of the mailing of the IME's report, the insurer or self-insured employer shall either file its admission of liability pursuant to section 8-43-203 or request a hearing before the division contesting one more of the IME's findings or determinations contained in such report." Here there is ample support for the ALJ's finding that the respondents did not receive the addendum to the DIME report until April 29, 2010, when an employee of the Division sent them a copy. We agree with the ALJ that no duty of the respondents was triggered under § 8-42-107.2(4), and that to hold otherwise would result in a violation of the respondents' due process rights Cf. Bowlen v. Munford, 921 P.2d 59 (Colo. App. 1996) (claimant must receive actual notice of a final admission of liability to permit an informed-decision regarding whether to challenge it).
We also agree with the ALJ that the respondents' receipt of the Division's Notice of Completion of IME Proceeding did not trigger their duty under § 8-42-107.2(4). That document is contained in the record and it is true that it states that "[w]ithin 30 days after the date of mailing of this Notice, the insurance carrier shall either admit liability consistent with the IME report or file an application for hearing." However, it is also apparent that the notice contemplates that the parties have received the DIME report. Thus, it states that [i]f you have not received a copy of the final IME report in this case, please contact the IME office at (303) 318-8652."
The record here does not disclose what measures, if any, were undertaken by the respondents upon their receipt of .the notice of completion of the DIME. However, we agree with the ALJ that the notice did not trigger their obligation to file an application for hearing or to file an admission consistent with the DIME report within the thirty-day statutory period. As we understand the ALJ's order, he was unpersuaded that the respondents failed to take steps to obtain the DIME report or the addendum to it. The claimant has not filed a brief in support of her petition to review and we perceive nothing in the petition that persuades us that the ALJ erred or abused his discretion in this respect. The record certainly does not compel the ALJ to have found that the respondents did not comply with their duty after receiving the notice to attempt to obtain the DIME report and the ALJ found that they filed an application for a hearing on the same day that an employee of the Division sent them a copy of the addendum. The ALJ's findings supporting his conclusion that the respondents timely filed an application for hearing are supported by substantial evidence in the record and are therefore binding upon us. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Under these circumstances we perceive no reversible error or abuse of discretion warranting setting aside the ALJ's order.
Finally, insofar as the claimant argues that the respondents' previous adjusters at Sedgwick remained the insurer's "apparent agents," we have considered the claimant's bare assertion of this, unaccompanied by argument or explanation, and we are unpersuaded by it.
II.
The claimant next contends that the ALJ erred in finding that the DIME physician's opinion was incorrect and therefore that the DIME report was overcome by clear and convincing evidence. We are unpersuaded by this argument.
Section 8-42,-107(8), C.R.S., provides that the DIME physician's findings of maximum-medical improvement and medical impairment are binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Go. v. Gussert, supra.
The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Id. This is true despite the elevated standard of proof required to overcome a DIME: "[I]rrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied." Id., 914 P.2d at 414. Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id.; Section 8-43-301(8,), C.R.S. Substantial evidence is that quantum of probative evidence which a rational tact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id.
Here, the ALJ credited the opinions of Dr. Burris, who testified at the hearing. The ALJ entered factual findings that are supported by the testimony of Dr. Burris, who stated that Dr. Burkhardt's impairment rating was incorrect in a variety of respects, and that the lack of objective findings and the negative diagnostic tests supported the conclusion that no impairment rating is appropriate. His testimony, which the ALJ accurately summarized in his findings, constitutes substantial evidence that amply supports those findings. The ALJ's factual findings, in turn, amply support the conclusion that Dr. Burkhardt's impairment rating was overcome by clear and convincing evidence.
III.
Finally, the claimant argues that the ALJ erred in .not awarding to her medical benefits pursuant to Grqyer v. Industrial Commission, 759 P.2d 705 (Colo. 1988). However, our review of this contention is hampered by the absence of any argument in the claimant's petition to review. She has not filed a brief in support of that petition and it contains only the mere assertion that error was committed in that respect. In general, when the error is not plain we decline to attempt to deduce a party's arguments from a bald assertion of error. Such a practice requires us to speculate regarding the party's arguments and threatens to put us in the-position of acting as surrogate counsel for that party.
We have reviewed the record in this respect and we perceive ho error. The ALJ's factual findings are supported by substantial evidence and he applied the correct legal standard in denying Graver medical benefits. See section 8-43-301(8), C.R.S. (setting forth grounds on which the ALJ's order may be set aside).
IT IS THERE FORE ORDERED that the ALJ's order dated November 23, 2010 is affirmed.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated December 13, 2010, that denied the claimant's request for penalties for the employer's alleged failure to insure. We affirm.
A hearing was held on several issues, one of which was the claimant request for penalties for the employer's alleged failure to insure. The order under review here addressed only the penalty issue, while the issues of permanent partial disability benefits and Graver medical benefits were addressed in a separate order, which was separately appealed. Following the hearing the ALJ entered factual findings that for purposes of our order may be summarized as follows. The claimant sustained a compensable injury on August 27. 2007, liability for which was admitted by the employer's insurer. Benefits and compensation have been paid. The ALJ also found that the employer is insured by AIG or by one of its "member companies." The employer's policy requires that it reimburse AIG up to $5.0.00.000 per claim.
Based upon these findings the ALJ concluded that no penalty for "failure to insure" was appropriate. The claimant argued that the employer's contractual obligation to reimburse the insurer the cost of the claim was a "deductible" governed by § 8-44-111, C.R.S. That section prohibits an insurance contract that contains a deductible exceeding $5,000. However, the ALJ concluded that the employer's obligation to reimburse the insurer was not a deductible. The ALJ reasoned that the insurer was primarily liable for full payment of the claim and that any contract between the employer and insurer does not affect the insurer's primary liability. The ALJ therefore denied the claimant's request for penalties.
The claimant appealed and reiterates her argument that the employer's admission that it has a "retained risk" of up to $5,000,000 violates the prohibition in § 8-44-111 against any deductible in excess of $5,000. However, we perceive no error in the ALJ's order.
Section 8-43-408, C.R.S. provides that "[i]n any case where the employer is subject to the provisions of articles 40 to 47 of this title and at the time of an injury has not complied with the insurance provisions of said, articles . . . the employee, if injured, . . . may claim the compensation and benefits' provided in said articles, and in any such case the amounts of compensation or benefits provided in said articles shall be increased fifty percent." Here, the claimant contends that the employer failed to comply with § 8-44-111(1), which provides that "[a]ny employer may agree, as a condition of any contract for the insurance of compensation and benefits as provided in articles 40 to 47 of this title or against liability therefore to pay an amount not to exceed five thousand dollars per claim toward the total amount of any claim payable under articles 40 to 47 of this title." The statute also provides that the insurer shall adjust the premium based upon the payment of "such deductible."
Here, we agree with the. ALJ that the employer's contractual obligation to reimburse the insurer did not create a "deductible" policy within the meaning of § 8-44-111. The ALJ found that AIG was primarily liable for all benefits and compensation payable on the claim, and that AIG's liability was not triggered by the payment of any certain amount by the employer. The Workers Compensation Act does not set forth a definition of the term "deductible." However that term has a commonly accepted meaning and we discern no ambiguity in the word. A "deductible" is defined as "the portion of the loss to be borne by the insured before the" insurer becomes liable for payment." Black's Law Dictionary at 444 (8th ed.). See e.g.; Forecast Homes, Inc. v. Steadfast Insurance Co., 105 Cal. Rptr. 200 (Cal. Ct: App. 2010) (a deductible is a portion of the insured loss for "which the insured is liable before the insurer owes a duty to indemnify); General Star Indemnity Co. v. West Florida Village Inn, 874 So.2d 26 (Fla. Ct. App. 2004) (a deductible relieves the insurer of responsibility for an initial specified loss of the kind insured against); Riemer v. Columbia Meclical Plan. Inc., 141 A.2d 677 (Md. 2000) (the deductible is the-portion, of the loss borne by the insured before he is entitled to recovery from the insurer); American Nurses Association v. Passaic General Hospital, 484 A.2d 670 (N.J. 1984) (a deductible alters the point at which the insurance company's obligation to pay will ripen).
Here, it is undisputed that AIG was liable from the outset and there was no portion of the loss borne by the employer as a prerequisite to AIG's liability. Therefore, the employer's contractual obligation to reimburse the carrier was not an obligation to pay a deductible.
Because of our resolution of this matter, it is unnecessary for us to resolve the respondents' other contentions, including the argument that the claimant lacked standing to raise this argument.
IT IS THEREFORE ORDERED that the ALJ's order dated December 13, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
DEANNA SIEFKEN, AURORA, CO, (Claimant).
AMERICAN INSURANCE GROUP PLAN, Attn: TAMMY WILLIAMS, C/O: SEDGWICK CMS — PHOENIX, LEXINGTON, KY, (Insurer).
CHRIS L. INGOLD, ESQ., Attn: CHRIS L. INGOLD, ESQ., WALNUT, CA, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, Attn: DAVID DWORKIN, ESQ., DENVER, CO, (For Respondents).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MICHELLE YAKLIN/CHRISTOPHER GRIMES, IRVING, TX, (Other Party).
GREENBERT TRAURIG, LLP, Attn: JEANNETTE M. BROOK, ESQ., DENVER, CO, (Other Party 2).