Opinion
W.C. No. 4-714-996.
March 2, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated September 9, 2008, that determined the claimant's average weekly wage (AWW), found the respondents' final admission of liability (FAL) to be invalid and imposed penalties. We affirm.
The claimant sustained an admitted industrial injury on January 12, 2007. An authorized treating physician (ATP) performed an impairment-rating examination and assigned an impairment of the claimant's right upper extremity. However, the ATP opined that the claimant was not at maximum medical improvement (MMI) for the claimant's work-related neck injury. The respondents filed an FAL admitting permanent partial disability based only upon the right upper extremity impairment and asserting that the claimant was at MMI. The claimant objected to the FAL and applied for a hearing on the issues of striking the FAL, penalties and AWW. The ALJ determined that the FAL was invalid because the ATP's worksheets were not attached and, although the respondents asserted in the FAL that the claimant was at MMI, the ATP's report stated that the claimant was not at MMI. The ALJ imposed penalties against the insurer pursuant to § 8-43-304(1) C.R.S. 2008 and determined the AWW by combining the claimant's wages received from the employer and wages received by the claimant in separate employment as a commercial fisherman. The respondents bring this appeal.
I.
The respondents first contend that the ALJ erred in determining that the February 7, 2008 FAL was invalid. The ALJ determined the FAL was invalid on two grounds.
The first was that the worksheets were not attached to the FAL. Section 8-43-203(2)(b)(II), C.R.S. 2008 states that where a "final admission is predicated upon medical reports, such reports shall accompany the final admission." W.C. Rule of Procedure 5-5(A), 7 Code Colo. Reg. 1101-3 provides that when "the final admission is predicated upon medical reports, such reports shall accompany the admission along with the worksheets or other evaluation information associated with an impairment rating." As noted by the ALJ the panel has previously held that failure to attach the AMA Guides worksheets vitiated the FAL. McCotter v. U. S. West Communications, Inc., W.C. No. 4-430-792 (March 25, 2002); Siegmund v. Fore Property Company, W.C. No. 4-649-193 (January 30, 2007). An FAL that does not include the rating physician's entire report, including both the narrative discussion and the ratings worksheets required by Rule 5-5(A) is legally insufficient. The rationale for this holding is that the statute requires medical reports to be filed and "is designed to promote intelligent decision making by claimants" by informing them of the factual predicates for the admission and providing them with a basis to decide whether grounds exist to contest the FAL. McCotter v. U.S. West Communications, Inc., supra.
The respondents acknowledge that the worksheets were not attached to the FAL. However, they argue that they substantially complied with Rule 5-5(A) because the physician had failed to provide the impairment worksheets until later and they were therefore unable to attach the worksheets to the FAL. This argument might be relevant in determining whether an FAL was appropriately filed in the first place or by way of mitigation of penalties. However, on the narrow issue of the validity of the FAL we are not persuaded to depart from the reasoning in McCotter v. U. S. West Communications, Inc., supra and Siegmund v. Fore Property Company, supra.
The ALJ also determined that the FAL was invalid because, although the medical report attached to the FAL stated that the claimant was not at MMI, the respondents asserted in the FAL that the claimant had reached MMI. The ALJ concluded that the FAL was not predicated on the medical report which accompanied it, in violation of § 8-43-203(2)(b)(II) and Rule 5-5(A) The ALJ also found the respondents violated Rules 5-5(E) and both sections 8-42-107(8)(b)(I) C.R.S. 2008 and 8-42-107.2(2)(b) C.R.S. 2008. Section 8-42-107(8)(b)(I) provides that an authorized treating physician shall make a determination as to when the injured employee reached MMI. Section 8-42-107.2(2)(b) provides that if any party disputes a finding or determination of the authorized treating physician that party shall request a DIME. Rule 5-5(E) provides that within 30 days after delivery of a determination of medical impairment by the authorized treating physician, the insurer shall either file an admission of liability consistent with the physician's opinion or request a DIME.
The respondents cite Faulkner, v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000) and Leprino Foods v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo.App. 2005) and contend that the ALJ erred because the cervical neck injury was not admitted by them. They argue that the issue of compensability is a threshold issue regarding which the opinion of a DIME physician or an ATP has no presumptive weight. We are not persuaded by the respondents' arguments that the ALJ committed any error in determining that the FAL was invalid.
It is true, as the respondents note, that proof of a work-related injury is in the first instance a threshold issue of fact to be determined by an ALJ under the preponderance of the evidence standard. Section 8-43-201, C.R.S. 2008; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). However, here the respondents filed an admission of liability acknowledging that the claimant suffered an industrial injury on January 12, 2007. The issue therefore was not as in Faulkner whether the claimant sustained a compensable injury in the first instance, nor was the issue the respondents' right to question whether the cervical condition was causally related to the admitted injury. Rather, the issue was the respondents' compliance with the statute and the rule applicable to the filing of final admissions. As noted previously, the ALJ found that the respondents filed an FAL asserting that the claimant was at MMI and that his cervical condition was unrelated to the admitted accident based upon a medical report that supported neither of those propositions. We are not persuaded that the ALJ erred in determining that the insurer's actions in filing the FAL violated Rules 5-5(E), 5-5(A) and sections 8-42-107(8)(b)(I), 8-42-107.2(2)(b) and 8-43-203(2)(b)(II).
The respondents also rely upon Moore v. Cobb Mechanical Contractors, W. C. No. 4-599-920 (April 12, 2006) in arguing that they were not required to obtain a DIME in a contested claim. We agree with the respondents insofar as they are arguing that the ALJ may have erred in believing that they should have sought a DIME to "challenge" the doctor's opinion. The ALJ noted in his factual findings that the respondents had available to them "many other avenues," one of which was obtaining a DIME under § 8-42-107.2(2)(b). The ALJ had already found that the doctor's report relied upon by the respondents did not state that the claimant had reached MMI and it is therefore not apparent from his order why the ALJ believed the respondents had the opportunity to obtain a DIME to challenge that opinion. It is true that if the respondents had complied with the applicable procedural requirements they may have had the right to obtain an "18-month DIME" in order to challenge the doctor's determination that the claimant had not reached MMI. See § 8-42-107(8)(b)(II), C.R.S. 2008. However, we do not understand the ALJ to be referring to that procedural mechanism.
However, even assuming that the ALJ erred in believing that the respondents had the opportunity to obtain a DIME, we nonetheless do not view this as reversible error. The ALJ's observations that a DIME was available are in the nature of dicta and much more to the point is his conclusion that the respondents chose to file an FAL without complying with the applicable statutory and regulatory provisions. Here the respondents had admitted the compensability of the claim and in filing an FAL chose to ignore the opinion of the ATP on the issue of MMI and the causal connection of the cervical condition.
The respondents cite Quintana v. Jorgensen Co., W. C. No. 4-543-106 (September 16, 2004) for the proposition that the claimant's failure to endorse the issue of compensability of the cervical problem should have prevented the ALJ from determining compensability. We are not persuaded that the analysis in Quintana applies here. Quintana involved the failure of a claimant to timely object to the issue of permanent partial disability benefits admitted to in a FAL. Here the claimant timely objected to the FAL and set the matter of the issue of the FAL failure to comply with the ATP's opinions on impairment and MMI both of which involved the connection of the cervical condition to the admitted industrial accident.
Determining causation is inherent in the treating physician's determination of MMI. Egan v. Industrial Claim Appeals Office of State 971 P.2d 664 (Colo.App. 1998); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996). Where neither party has requested a DIME the treating physician's determination is binding on the parties and the ALJ in the absence of a change of condition. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Lopez v. South Valley Drywall, W. C. Nos. 4-248-401, 4-302-144 (April 28, 1999). Here the respondents did not seek a DIME or request a hearing on the issue of causation; rather they filed an FAL based on selected portions of the ATP's report. We further note that it is well established that MMI is not divisible and cannot be parceled out among the various components of an industrial injury. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). It follows that the ALJ properly found the claimant was not at MMI where the ATP did not place the claimant at MMI for the cervical injury. Consequently, under these circumstances we perceive no reason to interfere with the ALJ's determination that the FAL was invalid or his decision to impose penalties for noncompliance with the statute and the rules.
The respondents do not argue that the amount of the penalty imposed was excessive. Rather the respondents reiterate the argument that the ALJ erred in ruling that the FAL filed in this matter was in violation of the statute and the rules because they were contesting the compensability of the alleged cervical injury. As noted above the ALJ
concluded that the FAL was in violation of § 8-43-203(2)(b)(II) and Rule 5-5(A) and also found the respondents violated Rules 5-5(E) and sections 8-42-107(8)(b)(I), 8-42-107.2(2)(b).
Section 8-43-304(1), C.R.S. 2008, allows an ALJ to impose penalties up to $500 per day against any employer or insurer who commits one of four types of violations. A person may be penalized "who violates any provision of articles 40 to 47 of [title 8], or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel or any judgment or decree made by any court. . . ." Moreover, a failure to comply with the Workers' Compensation Rules of Procedure is a failure to perform a "duty lawfully enjoined" within the meaning of § 8-43-304(1). See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The imposition of penalties under § 8-43-304(1) is therefore a two step process. The ALJ must first determine whether the disputed conduct constituted a violation of the Act, of a duty lawfully enjoined, or of an order. If the ALJ finds such a violation, the ALJ may impose penalties if he also finds that the employer's actions were objectively unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003).
The burden of showing that penalties should be imposed was upon the claimant and whether he met that burden is generally a factual question for resolution by the ALJ. Therefore, his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Under this standard of review it is the ALJ's sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Here, the ALJ's factual findings are supported by the factual record and, as discussed above, in our view he correctly applied the relevant legal standards. Therefore, we agree with the ALJ that the respondents' conduct violated the Act and the rules and further agree that the respondents' actions were not objectively reasonable. In light of our determination that the ALJ did not error in his determination that the FAL was invalid and failed to comply with the statute and the rules, we reject the respondents' arguments that the ALJ erred in imposing penalties.
II.
The respondents also contend that the ALJ erred in determining that the claimant's average weekly wage (AWW) was $962.01. We are not persuaded that the ALJ abused his discretion.
The ALJ entered the following pertinent findings of fact, which appear to be uncontested by either party. The claimant worked for the employer from 2002 until 2008. In 2006 the year preceding his injury, the claimant made $24,541 from that employment. The claimant usually ceased his employment with the employer from about May through August, during which time he worked as a commercial fisherman. In 2006, the claimant made $24,483 from his employment as a commercial fisherman. The ALJ determined that the fairest method of calculating AWW was to add the wages from the employer in 2006 to the wages received from commercial fishing in the same year, which resulted in an AWW of $962.02 per week.
The respondents do not challenge the finding of facts made by the ALJ above. Rather they argue that the claimant was not "concurrently" employed with the employer here and as a commercial fisherman. The respondents further argue that the method used by the ALJ is speculative because it assumes that the claimant would have returned to Alaska in 2007 to work as a commercial fisherman. The respondents argue that because the claimant only worked as a commercial fisherman on a seasonal basis during the summer his earnings are not reflective of the earnings for the entire year. We are not persuaded that the ALJ abused his discretion in calculating the AWW based on both employments.
The Supreme Court of Colorado recently issued Avalanche Industries, Inc. v. Clark, 198 P.3d 589 (Colo. 2008), in which the court affirmed the ALJ's exercise of discretion in calculating a claimant's AWW based on earnings at a subsequent employer. The court noted the discretionary exception in § 8-42-102(3) C.R.S. 2008, which provides that the ALJ, in each particular case, may compute the average weekly wage in such a manner and by such method as will, in the opinion of the ALJ, fairly determine the employee's AWW. Here the ALJ specifically relied on the discretionary exception found in § 8-42-102(3). In cases applying the discretionary exception, we review the ALJ's decision for an abuse of discretion, only reversing where the ALJ's determination exceeds the bounds of reason and is unsupported by applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850, (Colo. 1993) (quoting Rosenberg v. Bd. Of Educ. of Sch. Dist. No. 1, 710 P.2d 1095, 1098-99 (Colo. 1985)).
Here the ALJ found that during May through August the claimant worked as a commercial fisherman every year since 2004, earning substantial amounts that comprised about fifty percent of his yearly income. Given the history of consistent work as a commercial fisherman, we cannot say that the ALJ engaged in speculation in including the claimant's earning as a fisherman in his computation of AWW.
As the ALJ noted, the overall objective of calculating the AWW is to arrive at a fair approximation of the claimant's earning capacity. Furthermore, another objective of the average weekly wage calculation is to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity resulting from the industrial injury. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Here the claimant regularly worked during the course of a year for both the employer and as a fisherman and we cannot say the ALJ abused his discretion by looking to the entire year in determining the claimant's AWW. See Campbell v. IBM Corp. supra.
The respondents also argue that the work for the employer and as a fisherman where not "concurrent." We note that the ALJ did not specifically rely on case law involving "concurrent employment." In any event, the ALJ is afforded broad discretion to calculate the AWW by such method as he judges will result in a fair wage, and we do not read Avalanche Industries as restricting that discretion to cases where there is "concurrent employment." Indeed, we note that in Avalanche Industries the claimant was not engaged in concurrent employment, but had taken a subsequent position paying considerably higher wages than she received at the time of injury. In this case, we hold that the ALJ did not abuse his discretion in considering the impact of the loss of income suffered by the claimant in his capacity as a commercial fisherman as a result of the injury.
IT IS THEREFORE ORDERED that the ALJ's order issued September 9, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksciun
______________________________
Thomas Schrant
DONALD SINKEY, PAGOSA SPRINGS, CO, (Claimant).
PAINT CONNECTION PLUS, PAGOSA SPRINGS, CO, (Employer).
TWIN CITY FIRE INSURANCE COMPANY, HOUSTON, TX, (Insurer).
DAWES AND HARRISS BLOODSWORTH, PC, Attn: ELLIOT L BLOODSWORTH, DURANGO, CO, (For Claimant).
HALL EVANS, L.L.C., Attn: MEGAN E COULTER, ESQ., DENVER, CO, (For Respondents).
THE HARTFORD, Attn: SHARON N TAYLOR, HOUSTON, TX, (Other Party).