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In re Bettinger v. the Great Indoors, W.C. No

Industrial Claim Appeals Office
May 11, 2009
W.C. No. 4-513-392 (Colo. Ind. App. May. 11, 2009)

Opinion

W.C. No. 4-513-392.

May 11, 2009.


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 17, 2008, that denied the claimant's request for medical benefits to cure and relieve the effects of his ulcerative colitis and denied the claimant's request for penalties for respondents' alleged failure to timely pay permanent partial disability (PPD) benefits. We affirm.

The claimant suffered an admitted industrial injury to his back on August 19, 2001. The claimant underwent a spinal fusion in 2006 and the claimant testified that subsequent to his surgery he developed constipation and required laxatives to treat his condition. The claimant was diagnosed with ulcerative colitis. The claimant underwent a Division-sponsored independent medical examination (DIME) in 2008. The DIME physician assigned a 28 percent whole person impairment rating, but did not assign the claimant an impairment rating for his ulcerative colitis and concluded that the etiology of the colitis was unknown. The ALJ concluded that the claimant had failed to demonstrate that he was entitled to reasonable and necessary medical treatment to cure and relieve the effects of his ulcerative colitis condition. In addition, the claimant sought penalties for alleged violation of statutes and rules governing the proper calculation and timely payment of PPD benefits. The ALJ determined that the chronology of events revealed that the claimant failed to establish entitlement to recover penalties.

The claimant brings this appeal contending that the ALJ erred both in failing to impose penalties and in denying his claim for the disputed medical benefits. However, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). The claimant's petition to review other than general allegations of error, derived from § 8-43-301(8), C.R.S. 2008, sets forth five allegations of error.

I.

The claimant first contends that the ALJ erred in denying the claimant's request for medical benefits because "the claimant carried the burden of proof and no substantial evidence to the contrary was presented by [the] [r]espondents." We disagree.

Here the ALJ found with record support that the DIME physician did not assign the claimant an impairment rating for his ulcerative colitis and concluded that the claimant suffered from colitis with an unknown etiology. Exhibit 1 at 18. It is well established that the DIME physician's medical impairment rating is binding unless overcome by "clear and convincing evidence." Section 8-42-107(8)(c), C.R.S. 2008; Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995). "Clear and convincing evidence" is evidence which proves that it is "highly probable" the DIME physician's opinion is incorrect. Id. Consequently, the courts have held that the DIME physician's determination that an impairment is or is not caused by the industrial injury is also subject to the clear and convincing evidence standard. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).

The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995). 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. . Therefore, the standard of review remains whether the ALJ's findings of fact are supported by substantial evidence in the record. Id.; see also, § 8-43-301(8). Substantial evidence is that quantum of probative evidence which a rational fact 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.

On the issue of the cause of the claimant's ulcerative colitis the DIME physician stated that the claimant had spoken with his GI doctors and they had not come up with an etiology of his ulcerative colitis and were not certain as to whether or not it was related to his surgery. Exhibit 1 at 17. The DIME physician did not include the ulcerative colitis in his rating and assessed the colitis as having an unknown etiology. Exhibit 1 at 18. The ALJ determined that the DIME physician's opinion was that the claimant's ulcerative colitis condition would not be identified as caused by his industrial injury. In our view, the ALJ's determination of what was the opinion of the DIME physician is reasonable.

Further, it does not appear that the claimant even argues that he overcame the DIME physician's opinion. However, to the extent that the claimant argues that he overcame the DIME physician's opinion we disagree. Other than his own testimony the claimant has not pointed to any specific evidence establishing a causal connection between the ulcerative colitis and the industrial injury. In our opinion the claimant's lay testimony does not compel the conclusion that the DIME physician's opinion had been overcome by clear and convincing evidence. Therefore, we see no error in the ALJ's determination that the claimant was not entitled to medical benefits to treat the condition.

II.

The claimant next contends that the ALJ erred in assuming that the opinion of the DIME physician had removed the determination of causation from the ALJ, because the DIME physician had left the determination of the inclusiveness of the ulcerative colitis up to the ALJ. We are not persuaded that the ALJ erred.

To the extent that the claimant may be arguing that the ALJ erred in finding that the DIME physician's opinion must be overcome by clear and convincing evidence on the issue of medical treatment because the claimant had been placed at maximum medical improvement we are not persuaded that the ALJ erred. We acknowledge that a DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits or change of physician. See Cordova v. Industrial Claim Appeals Office, supra; see also, Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (DIME determination of MMI did not preclude change of physician order where only Grover medical benefits were sought); Wilkinson v. Wal-Mart Stores, Inc., W.C. No. 4-674-582 (October 26, 2007). However, here the medical treatment requested was for treatment for ulcerative colitis in 2006, long before the claimant was placed at maximum medical improvement on August 3, 2007. Therefore, we do not view the requested medical treatment to be in the nature of Grover medical benefits nor do we see any error in the ALJ's reliance on the opinion of the DIME physician.

To the extent that the claimant may be arguing that in some way the nature of the DIME physician's report suggests that he could not resolve the issue of causation of the ulcerative colitis and, therefore, the ALJ erred in relying on the DIME report, we disagree. Here the DIME physician clearly stated that etiology was unknown. The claimant bears the burden of establishing entitlement to medical treatment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Here, the claimant did not overcome the DIME physician's opinion that the cause of the ulcerative colitis was unknown. We again see no error in the ALJ's denial of the requested medical treatment.

III.

The claimant next contends that the ALJ erred in holding that medical evidence had to be presented to link the ulcerative colitis to the work injury when the claimant had testified to the source of the condition. We acknowledge that as a general proposition medical evidence is not dispositive of causation. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).

However, as noted above we agree with the ALJ that the claimant was obliged to overcome the opinion of the DIME physician on the issue of causation and his lay testimony simply failed to do so. Further, even though the claimant did not carry the burden of overcoming the DIME physician's opinion, the DIME physician's report constitutes substantial evidence in support of the ALJ's determination that the claimant was not entitled to the requested medical treatment. Because this issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Therefore, we see no reason to interfere with the ALJ's order denying the requested medical benefits.

IV.

The claimant next contends that the ALJ erred in denying his request for penalties for alleged violation of statutes and rules governing the proper calculation and timely payment of PPD benefits in that the claimant carried his burden of proof and no substantial evidence to the contrary was presented by the respondents. We are not persuaded that the ALJ committed reversible error.

We note initially that penalties may be imposed against an insurer who "(1) violates any provision of the Act; (2) does any act prohibited by the Act; (3) fails or refuses to perform any duty lawfully mandated within the time prescribed by the director or the Panel; or (4) fails, neglects, or refuses to obey any lawful order of the director or the Panel." Pena v. Industrial Claim Appeals Office, 117 P.3d 84, 87 (Colo.App. 2004); see also § 8-43-304(1), C.R.S. 2008. The failure to comply with a procedural rule is a failure to obey an "order" within the meaning of § 8-43-304(1). Pioneers Hosp. v. Industrial Claim Appeals Office, 114 P.3d 97, 98 (Colo.App. 2005). An employer or insurer fails to obey an order if it fails to take the action that a reasonable insurer would take to comply with the order. The employer's or insurer's action is therefore "measured by an objective standard of reasonableness." Jiminez v. Industrial Claim Appeals Office, 107 P.3d 965, 967 (Colo.App. 2003). The reasonableness of an employer's or insurer's action depends on whether the action was predicated on a rational argument based in law or fact. Id.

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. If a violation is found, it must be determined whether the violator acted reasonably. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995).

Ordinarily, the existence of a violation and the reasonableness of the violator's conduct are issues of fact for determination by the ALJ. 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). In reviewing the ALJ's order refusing to impose penalties, we are bound by his factual findings if they are supported by substantial evidence in the record. Section 8-43-304(8); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, as well as credibility determinations and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).

On the issue of the respondents' liability for penalties pursuant to § 8-43-304(1) and W.C. Rule of Procedure 5-6(c), 7 Code Co. Reg. 1101-3, the ALJ made the following findings of fact. The respondents filed a final admission of liability (FAL) dated May 14, 2008 consistent with the DIME physician's whole person rating. On June 4, 2008, the Division of Workers' Compensation (DOWC) sent a letter to the insurer stating that because the claimant was a minor his PPD benefits required recalculation. The DOWC sent additional correspondence to the insurer about the matter. On July 3, 2008 the insurer filed an amended FAL based on the recalculation of PPD benefits. The insurer sent the PPD payment directly to the claimant's old address; however, the claimant instructed the insurer to stop payment on the check and issue a new check in the care of his attorneys. In accordance with the claimant's instructions, the insurer issued a new PPD check on July 15, 2008 directly to the claimant's attorneys. The claimant had failed to prove that he was entitled to recover penalties pursuant to § 8-43-304(1) and W.C. Rule of Procedure 5-6(c), for the alleged failure of the respondents to timely pay PPD benefits. The May 14, 2008 FAL specifically noted that the claimant had previously been paid $50,001.56 in PPD benefits and no further PPD benefits were due. The FAL did not specifically award additional PPD benefits; therefore, Rule 5-6(c) did not require payment of PPD benefits within five days. Further, even if the respondents somehow violated Rule 5-6(c) in the May 14, 2008 calculation of PPD benefits, the claimant failed to demonstrate that any deficiency in the initial calculation was objectively unreasonable.

Regarding the claimant's request for penalties pursuant to § 8-43-401(2)(a) C.R.S. 2008, the ALJ found that the chronology of events reveals that the insurer paid the claimant additional PPD benefits according to the DOWC's notice and within 30 days as required by the statute. Although the payment was made to the claimant's old address, the claimant failed to demonstrate that the insurer acted with deliberate intent and willfully withheld the payment of PPD benefits by mailing the payment to an incorrect address. The ALJ concluded that the claimant was not entitled to recover penalties pursuant to § 8-43-401(2)(a).

Here, the claimant has only generally argued that the ALJ erred in denying penalties because the claimant carried his burden of proof and no substantial evidence to the contrary was presented by the respondents. The claimant has not pointed out any specific finding made by the ALJ that is not supported in the record. We have reviewed the record and the findings regarding penalties are supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to an award of penalties.

V.

The claimant finally contends that the ALJ erred in not analyzing his request for penalties under the appropriate portions of the Workers' Compensation Act, the W.C. Rules of Procedure and the doctrines expressed in Human Res. Co. v. Industrial Claim Appeals Office. We disagree.

In Human Res. Co. v. Industrial Claim Appeals Office, the insurer received three medical impairment reports issued by different physicians. One report contained an impairment rating regarding the claimant's knees. The other two contained a whole person impairment arising from psychological problems. The court concluded that the insurer's response to the first report did not satisfy the requirements of the rule and that the insurer was obligated to respond to each of the reports. As we read Human Res. Co. v. Industrial Claim Appeals Office, it generally stands for the proposition that imposition of penalties is proper where insurer failed to offer a reasonable factual or legal explanation for its actions.

Contrary to the claimant's argument the ALJ specifically noted that penalties could only be imposed if the ALJ concluded that the violation was objectively unreasonable. The ALJ then went on to recite the relevant evidence and concluded that the claimant failed to demonstrate that the actions of the insurer were objectively unreasonable. The ALJ therefore concluded that the claimant was not entitled to recover penalties. In our view the ALJ did consider the appropriate doctrines as expressed in Human Res. Co. v. Industrial Claim Appeals Office. Therefore, we see no reason to interfere with the ALJ's order.

IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

NEIL BETTINGER, COMMERCE CITY, CO, (Claimant).

THE GREAT INDOORS, C/O: SEARS ROEBUCK COMPANY, LONE TREE, CO, (Employer).

LIBERTY MUTUAL INSURANCE COMPANY, Attn: JUNIE WOLFE, IRVING, TX, (Insurer).

IRWIN BOESEN, Attn: CHRIS L INGOLD, ESQ., DENVER, CO, (For Claimant).

LAW OFFICES OF RICHARD P. MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).


Summaries of

In re Bettinger v. the Great Indoors, W.C. No

Industrial Claim Appeals Office
May 11, 2009
W.C. No. 4-513-392 (Colo. Ind. App. May. 11, 2009)
Case details for

In re Bettinger v. the Great Indoors, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF NEIL BETTINGER, Claimant, v. THE GREAT…

Court:Industrial Claim Appeals Office

Date published: May 11, 2009

Citations

W.C. No. 4-513-392 (Colo. Ind. App. May. 11, 2009)

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