Opinion
W.C. No. 4-445-606
November 7, 2002
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Friend (ALJ) dated November 28, 2001; January 22, 2002; and March 1, 2002. We dismiss the claimant's petition to review the November 2001 order insofar as it struck the claimant's July 2000 DIME application, and otherwise affirm that order and the January 2002 order. We set aside the March 1, 2002 order and remand the matter for further proceedings on the respondents' request for attorney fees.
This matter has been before us previously and a brief procedural history is necessary to understand the issues on review. The claimant suffered compensable injuries to his left foot and ankle on July 29, 1999. On January 25, 2000, the respondents filed a Final Admission of Liability which denied liability for medical impairment benefits. On January 31, 2000, the claimant timely objected to the Final Admission and filed a "Notice Proposal" for a Division independent medical examination (DIME) on the issues of maximum medical improvement (MMI) and permanent impairment.
The Rules of Procedure, Part XIV(L)(3)(a)(2) and (3), 7 Code Colo. Reg. 1101-3, provide that the parties must attempt to negotiate the selection of the DIME physician prior to intervention by the Division of Workers' Compensation (Division). Where the parties are unable to agree on a DIME physician, the DIME physician shall be selected by the Division. For that purpose, the insurer is required to notify the Division of the parties' failed negotiation "within 30 calendar days of their failure to agree," and the party seeking a DIME is required to file an application for a DIME "within 30 days of the date of the failure to agree." In addition, Rule XIV(L)(3)(b) provides that the party requesting the DIME shall designate the "desired medical specialty of the physician" to perform the DIME, and the body parts to be evaluated.
Here, the respondents rejected the list of DIME physicians offered by the claimant. By March 2, 2000, the parties remained unable to agree upon a DIME physician. On March 17, 2000, the respondents filed an application for a DIME which requested a DIME physician with expertise in occupational medicine or orthopedics to evaluate impairment of the claimant's left foot and ankle. The claimant objected to the medical speciality requested by the respondents' application and therefore, refused to pay for the DIME.
On July 6, 2000, the claimant filed an application for a DIME which requested the appointment of a neurologist and listed additional body parts to be evaluated by the DIME physician. The respondents' moved to strike the July DIME application.
In an order dated August 7, 2000, a Prehearing ALJ (PALJ) found that the claimant failed to comply with Rule XIV(L)(3). The PALJ also determined the claimant's July DIME request was untimely. Therefore, the PALJ granted the respondents' motion to strike the claimant's DIME application. The claimant appealed.
In an order dated December 18, 2000, we concluded the PALJ's order was interlocutory because the propriety of the order was subject to review by an ALJ. Therefore, we dismissed the claimant's appeal without prejudice. The Court of Appeals determined our order was also interlocutory and dismissed the claimant's appeal.
The claimant subsequently requested a hearing before the ALJ to review the PALJ's order. The ALJ found the claimant's failure to comply with Rule XIV(L)(3) did not waive her right to a DIME because no physician had been selected by the Division to perform the DIME and the time period for the claimant to pay for the DIME had not expired. Therefore, the ALJ determined the claimant's original Notice and Proposal for a DIME and the respondents' March 17 DIME application remained pending. Under these circumstances, the ALJ determined the claimant's July 2000 DIME request was redundant and properly stricken by the PALJ. Consequently, in an order dated November 28, 2001, the ALJ refused to set aside the PALJ's order striking the July 2000 DIME application.
Crediting Dr. Hughes' opinion that the claimant's bilateral knee pain was caused by a degenerative condition and not the industrial injury, the ALJ also determined the claimant failed to prove a causal connection between the industrial injury and her bilateral knee pain. Therefore, the November 28 order also denied medical treatment for the claimant's knee condition.
The claimant filed a petition to review the November 2001 order. The respondents moved to dismiss the petition to review insofar as the ALJ's order upheld the PALJ's order striking the July 2000 DIME application.
On January 22, 2002, the ALJ granted the respondents' motion to strike the petition to review. The claimant then filed a petition to review the January 22 order and moved to consolidate the two appeals. The ALJ consolidated the appeals except the appeal of the order striking the July 2000 DIME request.
Thereafter, the respondents moved for an award of attorney fees under § 8-43-301(14), C.R.S. 2002. The respondents asserted the claimant's repeated appeals of the ALJ's interlocutory order striking the July 2000 DIME application were not well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. The respondents also alleged the appeal was filed for the purpose of harassment or unnecessarily increasing the cost of litigation.
The claimant objected to the motion for attorney fees. However, on March 1, 2002, the ALJ determined there was no genuine issue that November 2001 order striking the July 2000 DIME application was interlocutory. Therefore, the ALJ determined the claimant's petition to review the order striking the July 2000 DIME application was not grounded in fact and not warranted by existing law or a good faith argument for extension, modification or reversal of existing law. The ALJ also determined the appeal was "interposed to harass, cause delay or unnecessarily increase the cost of litigation." Consequently, the ALJ ordered the claimant's attorney to pay attorney fees in the amount of $240. The claimant's attorney appealed the award of attorney fees.
I.
The claimant contends the ALJ erred in denying medical benefits for treatment of his knee problems. We disagree.
Initially, we note that the claimant's Designation of Record includes the "complete files of the Division of Administrative Hearings and Division of Workers' Compensation." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
The respondents are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2002; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). It is the claimant's burden to prove that the condition for which medical treatment is needed is causally related to the industrial injury. Snyder v. Industrial Claim Appeals Office, supra. The question of whether the claimant sustained her burden of proof is a factual determination for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the question is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The record reflects a direct conflict between the treating physicians and Dr. Hughes concerning the cause of the claimant's knee problems. The ALJ found Dr. Hughes' testimony to be "detailed, well reasoned and persuasive," and resolved the conflict in favor of Dr. Hughes' opinions.
Contrary to the claimant's contention, the ALJ was not required to give presumptive effect to the opinions of the treating physicians. No physician's opinion is entitled to special weight on the question of whether the claimant proved a compensable knee injury. Cf. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
Dr. Hughes' opinions contain substantial evidence to support the ALJ's finding that the claimant failed to prove the requisite causal connection between the industrial injury and her knee problems. Consequently, we must uphold the ALJ's determination that the claimant failed to prove entitlement to the disputed medical benefits. It is immaterial that the opinions of Dr. Charles and Dr. Oster, if credited, might support a contrary conclusion. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The claimant's remaining arguments on this issue essentially request that we substitute our judgment for that of the ALJ concerning Dr. Hughes' medical expertise. We have no authority to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). The ALJ expressly recognized that Dr. Hughes conducted an independent medical examination and was not a treating physician. The ALJ was free to consider this fact in assessing the probative weight of his testimony, but it did not preclude the ALJ from crediting Dr. Hughes' opinions. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) ; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993) (physician statement without confirmation goes to weight but doesn't compel finding physician's opinion incredible).
We also note that ALJ Hopf's order dated November 29, 2000, awarded future medical benefits including a gel prescribed by Dr. Belleville for treatment of "foot" pain. However, ALJ Hopf did not expressly determine the claimant was entitled to medical benefits for treatment of knee pain. Further, in granting the change of physician to Dr. Charles, ALJ Hopf did not explicitly hold the respondents responsible for treatment of the claimant's bilateral knee problems. Consequently, ALJ Hopf's order is not dispositive of the issue before the ALJ.
Moreover, the ALJ did not purport to determine MMI. Consequently, the claimant's argument that she is not at MMI is premature.
II.
Next, the claimant contends the ALJ erred in striking the July 2000 DIME application. The claimant also argues the ALJ's order is immediately reviewable because it results in a denial of her civil rights, due process, equal protection, property rights and constitutes irreparable injury. Further, the claimant contends the disputed order precludes her from "promptly" challenging the medical determination of MMI, and denies benefits that she would be entitled to receive after a DIME, such as further temporary disability and permanent partial disability benefits for whole person impairment.
We agree with the ALJ that this portion of the November 2001 order is interlocutory and not subject to review at this time. Consequently, we do not consider the claimant's substantive arguments.
Section 8-43-301(2), C.R.S. 2002, provides that any party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty" may file a petition to review. Orders concerning procedural issues, including discovery matters, do not satisfy the statutory definition of an appealable order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) (imposition of liability for deposition costs does not constitute a "penalty" under the Act); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, May 17, 1994 (order denying claimant's motion that the insurer pay the costs of an DIME was not appealable; petition for writ subsequently dismissed by the Court of Appeals on July 6, 1994, for lack of a final, appealable order by the ICAP and the ALJ); cf. Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991) (involving review of an order which dismissed a claim for benefits as a sanction for failing to comply with a discovery order). In light of these principles, we have concluded that a DIME serves an evidentiary function, and does not constitute a "benefit" or "penalty" within the meaning of § 8-43-301(2). Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996). The claimant's arguments do not persuade us to depart from our previous conclusions.
We note the claimant does not contend she is entitled to litigate the issues of MMI and medical impairment without a DIME. Rather, the claimant argues she is entitled to a DIME from a physician which meets the medical specialty listed in the July 2000 DIME application to evaluate the body parts listed in the July application.
Furthermore, the ALJ determined that the claimant's initial Notice and Proposal for a DIME, and the respondents' March 2001 DIME application were pending. Consequently, the claimant has not been denied the right to challenge the findings of MMI and medical impairment. If follows the ALJ's order has not denied the claimant further temporary disability benefits or an award of permanent partial disability benefits. Under these circumstances, agree with the ALJ that the November 2001 order striking the July 2000 DIME application is interlocutory and the claimant's petition to review that portion of the ALJ's order is premature. Therefore, the ALJ's January 22, 2002 order properly dismissed the claimant's petition to review the November 28 order on the issue of the DIME.
III.
Finally, the claimant's attorney contests the award of attorney fees, contending the ALJ's findings are legally insufficient to support the award. We conclude the matter must be remanded for further proceedings.
The respondents contend the award of attorney fees is not properly before us on review. As argued by the respondents, the award of attorney fees was not consolidated with the claimant's petitions to review the November and January orders. Nevertheless, the issue has been briefed by both parties, the ALJ had an opportunity to consider the briefs and more than 30 days have passed since the matter was briefed. Section 8-43-301(4), C.R.S. 2002. Under these circumstances, judicial economy is served by our review of the March 2002 order.
Section 8-43-301(14), C.R.S. 2002, provides that:
"the signature of an attorney on a petition to review or brief in support thereof constitutes a certificate by the attorney that such attorney has read the petition or brief; that, to the best of the attorney's knowledge, information, or belief formed after reasonable injury, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, cause delay, or unnecessarily increase the cost of litigation."
The statute provides that if a petition or brief is signed in violation of this statute, an ALJ shall award reasonable attorney fees and costs.
Generally, the parties must be afforded the right to a hearing whenever there are disputed issues of fact which govern administrative determinations. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is proper to forego a hearing only where there is no dispute concerning the material facts. See Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969). Consistent with these due process considerations, the Rules of Procedure, Part VIII(N), 7 Code Colo. Reg. 1101-3 at 20, provide that if there is an objection to the motion for attorney fees, the ALJ may refer the matter for "a formal hearing on the record to resolve the disputed issues."
The ALJ may determine as a matter of law whether a petition to review has any rational basis in law for purposes of determining if the appeal is frivolous. However, before attorney fees may be awarded, § 8-43-301(14) also requires a finding that the petition to review was imposed for wrongful purpose. In his written objection to the respondents' request for attorney fees, the claimant's attorney asserted his signature on the petitions to review the ALJ's November 2001 and January 2002 orders were based on a "well-formed belief that the petition and legal for the same were well-grounded and justifiable, and that review was not sought for any improper purpose." Thus, the pleadings reflect a factual dispute on a material issue in the imposition of attorney fees.
Further, the claimant's attorney argued that the issue was not ripe for adjudication because "no hearing has determined the prerequisite basis of the imposition of attorney fees required by § 8-43-301(14), C.R.S., nor has any evidence been presented that would support such a finding."
As we read the written objection to the motion for attorney fees, the claimant's attorney implicitly requested an evidentiary hearing on the question of whether the claimant's petition to review the order striking the July 2000 DIME application was interposed for an improper purpose. Under these circumstances, the ALJ should have conducted a hearing to resolve the disputed issues of fact. See West Weaver P.C. v. Division of Labor, 41 Colo. App. 214, 581 P.2d 749 (Colo.App. 1978). Therefore, we set aside the award of attorney fees and remand the matter for further proceedings which afford the claimant's attorney an evidentiary hearing.
In reaching this result, we should not be understood as expressing any opinion concerning the evidence or the proper disposition of the claim for attorney fees.
IT IS THEREFORE ORDERED that the ALJ's orders dated November 28, 2001 and January 22, 2002 are affirmed, and the claimant's petition to review the ALJ's order dated November 28, 2001, which struck the July 2000 DIME application is dismissed without prejudice.
IT IS FURTHER ORDERED that the ALJ's order dated March 1, 2002, is set aside and the matter is remanded for further proceedings on the issue of attorney fees, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Bill Whitacre
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _____November 7, 2002 ____to the following parties:
Loretta Lofgren, 33499 WCR 392, Gill, CO 80624
Diane Markley, Human Resources Manager, Kodak Polychrome Graphics, One Litho Plate Drive, Windsor, CO 80550
Transportation Insurance Co., Dave Reed, RSKCo, P. O. Box 5408, Denver, CO 80217
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
Lynn P. Lyon, Esq. and Suzanne M. Gall, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado