Opinion
W.C. No. 4-324-403
May 1, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), insofar imposed penalties under § 8-43-304(1), C.R.S. 1997, based on the respondents' failure to reinstate temporary total disability benefits. We reverse.
In December 1996 the claimant sustained a compensable back injury while performing her job as a "floral assistant." The respondents admitted liability for temporary total disability benefits, but subsequently terminated the benefits.
In May 1997, the claimant applied for a hearing on the issue of temporary total disability benefits commencing April 1, 1997. The claimant also listed the issue of penalties for "discontinuance of temporary total disability benefits."
The parties agree that the issues of temporary total disability benefits through June 24, 1997, and penalties for the respondents' alleged misconduct prior to that date, were settled. However, the matter proceeded to hearing on the issue of temporary total disability benefits subsequent to June 24, 1997. The claimant also added the issue of penalties for violation of § 8-42-105, C.R.S. 1997, violation of an order, and "continuing and continuous discontinuance of temporary total disability benefits."
Concerning these issues, the ALJ found that the respondents terminated the claimant's temporary total disability benefits pursuant to § 8-42-105(3)(c), C.R.S. 1997 (attending physician gives employee written release to regular employment). Specifically, the ALJ found that a vocational specialist performed a "job analysis" of the claimant's duties as a floral assistant, and presented the analysis to the treating physician. On June 24, 1997, the treating physician issued a report stating that the job description was "consistent with the claimant's physical capacity," and the respondents relied on the report to terminate benefits.
The ALJ also found that the claimant "disagreed" with the description of her duties contained in the job analysis, and conveyed her own job description to the treating physician. On August 18, 1997, the treating physician authored a letter to respondents' counsel stating the following:
"The job description proposed to me by the work capabilities consultant would be satisfactory for the patient to return to that type of work. Unfortunately, the business owner has stated that she does not agree with the job description as described, and that she does not have any pure sedentary type work for Ms. Gonsalves to return to. Any work that she would return to apparently will involve lifting up to 65 lb and I doubt that this could be done without increasing her symptomatology."
At the hearing, the respondents presented testimony from the respondent-employer that the job analysis accurately described the claimant's duties. However, the claimant testified that her duties required greater physical activity than was described in the job analysis.
The ALJ resolved the conflicts in favor of the claimant, and found that the job analysis "greatly understates the lifting, crawling, bending and stooping" required by the position of floral assistant. Thus, the ALJ found that the claimant has been temporarily totally disabled since June 24, 1997, and is entitled to temporary disability benefits since that date.
Concerning the issue of penalties, the ALJ found that by August 21, 1997, the "respondent-insurer knew or reasonably should have known" that the treating physician was no longer "certifying the claimant's ability to return to her regular job." The ALJ concluded that the respondents' failure to "take any action" in light of this knowledge renders them liable for penalties for "wrongfully withholding temporary disability compensation to the claimant pursuant to C.R.S. 8-43-304." Consequently, the ALJ imposed penalties of $100 a day from August 21 to October 15, 1997, the date of the hearing.
Relying on § 8-43-304(4), C.R.S. 1997, the respondents argue that they were denied adequate notice that their failure to reinstate temporary total disability benefits on August 21 would be considered as the basis for the imposition of penalties. The respondents also argue that, regardless of whether they received adequate notice, the record does not support the ALJ's imposition of penalties. They reason that their failure to reinstate temporary disability benefits, after an otherwise valid termination on June 24, does not constitute a violation of the Act. Moreover, the respondents assert that they acted reasonably because they had a valid factual argument that they were not required to reinstate the benefits. Specifically, they argue that the physical requirements of the claimants' jobs were the subject of a factual dispute. Because we agree with the respondents that the record does not support the ALJ's award of penalties, we do not reach the question of whether the respondents received adequate notice. Neither do we consider the respondents' argument concerning the penalty period.
Section 8-43-304(1) provides for imposition of penalties where the violator "does any act prohibited" by the statute, or "fails or refuses to perform any duty lawfully enjoined within the time prescribed." Thus, it must first be determined whether the disputed conduct violates any "provision" of the Act, or constitutes the failure to perform a legal duty. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If the conduct violates the Act, it must also be determined whether it was unreasonable as measured by an objective standard. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996); Villa v. Wayne Gomez Demolition and Excavating, Inc., W.C. No. 4-236-951 (January 7, 1997). The reasonableness of an action depends on whether it was "predicated on a rational argument based on law or fact." Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997).
Here, the ALJ apparently determined that the respondents violated § 8-42-105(3)(c) by failing to reinstate temporary total disability benefits after receiving the treating physician's letter of August 18. However, § 8-42-105(3)(c) establishes a circumstance under which temporary total disability benefits may be terminated, but does not purport to create any affirmative duty to reinstate temporary total disability benefits once they have been properly terminated. See Lymburn v. Symbios Logic, ___ P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997). Consequently, we agree with the respondents that the ALJ's findings do not support the conclusion that the respondents' failure to reinstate temporary total disability benefits constituted a violation of the Act. Allison v. Industrial Claim Appeals Office, supra.
However, even if the failure to reinstate benefits could, under some circumstances, constitute a "violation" of § 8-42-105(3)(c), we agree with the respondents that they presented a rational argument that such circumstances did not exist here. Specifically, we hold that the respondents presented a rational factual argument that the claimant was released to regular employment regardless of the treating physician's letter of August 18.
In Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), the court of appeals held that the opinion of the attending physician binds an ALJ with respect to the claimant's ability to perform regular employment. However, the court went on to indicate that the ALJ retains fact-finding authority where multiple attending physicians offer conflicting opinions concerning the claimant's ability to return to regular employment. Similarly, in Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996), the court indicated that an ALJ possesses fact-finding authority where a treating physician offers conflicting opinions concerning whether or not the claimant has reached maximum medical improvement. Finally, we have held that, under § 8-42-105(3)(b), C.R.S. 1997, an ALJ possesses authority to resolve "the questions of whether and to what extent . . . restrictions exist, and whether the employment provided to the claimant is within those restrictions." Rodriguez v. Noble Electrical Contracting, W.C. No. 4-254-794 (September 27, 1996).
Here, as the ALJ explicitly recognized, the parties presented conflicting evidence concerning whether or not the claimant's duties of employment fell within the restrictions established by the treating physician. The written reports of the treating physician indicate that his opinion about the claimant's ability to perform her regular duties depends on the actual physical requirements of those duties.
Under these circumstances, the case presented the ALJ with questions of fact concerning the actual nature of the claimant's duties of employment. The ALJ resolved these conflicts against the respondents. However, the existence of the conflict demonstrates that the respondents presented a rational argument, and the fact that the issues were resolved against them does not show that their position was unreasonable. Cf. Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991). Therefore, the respondents are not subject to a penalty because their conduct did not exhibit the "objective standard of negligence" which is necessary to impose penalties under § 8-43-304(1). Diversified Veterans Corporate Center v. Hewuse, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated December 4, 1997, is reversed insofar it imposed penalties on the respondents.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 1, 1998 to the following parties:
Bridget A. Gonsalves, P.O. Box 238, Snowmass, CO 81654
Aspen Branch, Inc., 528 E. Bleeker St., Aspen, CO 81611-1542
Steven A. Shkilevich, Seneca Insurance Company, 7310 E. Arapahoe Rd., #200, Englewood, CO 80112
Div. of Workers' Compensation, JoAnne Ibarra, Carrier Practices Unit (Interagency Mail)
Div. of Workers' Compensation, Barbara Carter, Special Funds Unit (Interagency Mail)
Lawrence D. Blackman, Esq. John Parsons, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
William G. Kaufman, Esq. Donald J. Kaufman, Esq., 401 23rd St., Ste. 302, Glenwood Springs, CO 81601 (For the Claimant)
By: __________________________________________________