Opinion
W.C. No. 4-248-318
February 27, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ), which determined that the claimant suffered compensable injuries, and ordered the respondent to pay benefits and penalties. We affirm.
From conflicting evidence the ALJ found that the claimant suffered injuries on March 20, 1995, arising out of and in the course of his employment as a tow truck driver for the respondent. The ALJ found that the claimant was responding to a towing request when the tow truck became stuck in the snow. The ALJ found that the claimant reported the situation to the respondent who sent help to get the tow truck out of the snow. While extricating the truck, the claimant injured his shoulder and broke his right leg. As a result of the injuries the claimant was hospitalized from March 20 to March 24, 1995.
Under these circumstances the ALJ awarded medical benefits and temporary total disability benefits for the period March 21, 1995 to April 11, 1996, the date the claimant returned to work as a cashier. The ALJ increased the claimant's temporary disability rate by fifty percent due to the respondent's failure to carry workers' compensation insurance.
The ALJ further found that the respondent received written notice of the claimant's injuries on March 23, 1995, and did not deny liability until June 21, 1996. Consequently, the ALJ also imposed a penalty equal to one day's compensation for each of the 415 days that the respondent failed timely to deny liability for the claim. However, the ALJ reduced the temporary disability award by $4,665, the amount the respondent paid the claimant after the injuries.
The respondent timely filed a Petition for Review. In his appellate brief, the respondent argues that the ALJ erred in finding that the claimant's injuries occurred within the scope of his employment. The respondent also contends that the ALJ erred in awarding temporary disability benefits, and that the ALJ abused his discretion by imposing the maximum penalty allowed under § 8-43-203(2), C.R.S. (1995 Cum. Supp.) [amended in 1996] for its failure timely to admit or deny liability.
For his part, the claimant contends that we lack jurisdiction to review the ALJ's order because the respondent's Petition for Review does not contain specific allegations of error as required by § 8-43-301(2), C.R.S. (1996 Cum. Supp.). Alternatively, the claimant contends that we should not consider the respondent's substantive arguments because the respondent failed to designate the June 12, 1996 transcript as part of the record on review. We reject the claimant's arguments.
I.
Admittedly, the respondent's Petition does not "detail the particular error and objections" of the respondent, as required by § 8-43-301(2). However, the court has held that the failure to include specific allegations of error in a Petition for Review is not jurisdictional, and does not preclude us from considering the Petition. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843, 845 (Colo.App. 1986). Therefore, we elect to consider the respondent's Petition.
Further, the ALJ's order indicates that his factual determinations were based upon the evidence presented at the hearing on July 3, 1996. See also Summary Order dated July 19, 1996. Moreover, there is no assertion or indication in the record that the ALJ was asked to consider the June 12 testimony.
Under these circumstances, we must conclude that the June 12 transcript was not before the ALJ. Consequently, we cannot consider the June 12 transcript, and the claimant's further arguments to the contrary are not persuasive. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995) (review limited to record before ALJ). Therefore, we shall proceed to consider the respondent's substantive arguments.
II.
The respondent contends that the ALJ failed to resolve conflicts in the evidence concerning whether the claimant was outside the scope of his employment at the time of the injuries. We disagree.
The ALJ resolved the conflicts based upon his credibility determinations. The ALJ expressly discussed the testimony of the employer, Louis Madeiros, who stated that he instructed the claimant to leave the truck in the snow. However, the ALJ found that the testimony was not credible. (Finding of Fact 5). Instead, the ALJ found that the employer sent employees to help the claimant extricate the tow truck from the snow, and not merely to give the claimant a ride back to the employer's premises. (Finding of Fact 3).
The ALJ's findings are supported by substantial evidence in the form of testimony by the claimant, and his co-workers. Moreover, the ALJ's findings support the ALJ's determination that the claimant's injuries arose out of and in the course of his employment. Therefore, we have no basis to disturb the ALJ's determination that the claimant suffered compensable injuries. See § 8-41-301(1), C.R.S. (1996 Cum. Supp.).
III.
Next, the respondent contends that the ALJ erred in awarding temporary disability benefits. We perceive no error.
As argued by the respondent, the claimant bears the burden to prove his entitlement to temporary disability benefits. The claimant sustains this burden by proving that the industrial injury physically disabled him from performing his regular employment for more than three days and that he left work as a result of the injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Once the claimant has sustained his burden of proof, he is entitled to temporary disability benefits until the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.) [subsection (3)(d) substantially amended in 1996]. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Here, the respondent concedes that the evidence is sufficient to support a finding that the claimant was medically restricted from performing his regular employment while he was hospitalized. Furthermore, the respondent does not deny that the claimant was totally disabled while in the hospital. Instead, the respondent contends that the evidence is insufficient to show that the claimant was medically restricted from performing his regular employment after leaving the hospital.
However, the undisputed facts establish that the claimant sustained his initial burden to prove an entitlement to temporary disability benefits. Consequently, the burden shifted to the respondent to prove that the benefits were terminated under section 8-42-105(3).
The respondent does not assert the occurrence of any of the events listed in § 8-42-105(3)(a)-(d). In fact, the respondent's post-hearing Position Statement dated July 18, 1996, made no argument to the ALJ on the issue of temporary disability.
Furthermore, even though the respondent contends that the claimant rejected an offer of "light duty" employment, the respondent does not contend that it made a "written offer" of "light duty" employment, within the claimant's medical restrictions as required by § 8-42-105(3)(d). See (Dr. Sterett report April 26, 1996). Therefore, we cannot say that the ALJ erred in awarding temporary disability benefits for the period of time after the claimant left the hospital.
IV.
Lastly, the respondent contest the ALJ's imposition of penalties under § 8-43-203(2). This statute provides that where an employer fails timely to admit or deny liability, the ALJ may impose a penalty "up to one day's compensation" for each day the employer fails to comply with the duty to admit or deny liability. The respondent concedes that it did not timely deny liability. However the respondent contends that the penalty was excessive in view of the "mitigating circumstances." Alternatively, the respondent contends that the ALJ's findings of fact are sufficient to permit appellate review of whether the ALJ abused his discretion by imposing the maximum penalty allowed by § 8-43-203(2). We disagree.
The ALJ's order is sufficient to permit appellate review if the basis for the order is apparent from the findings of fact. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). Furthermore, the ALJ is not required to discuss every piece of evidence or cite specific evidence before rejecting it as unpersuasive. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, the ALJ need only make findings on the evidence he found persuasive and determinative. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
We have no difficulty ascertaining the basis for the penalty imposed by the ALJ. The ALJ determined that a penalty equal to one day's compensation was warranted because the respondent did not deny liability until June 21, 1996, even though it received written notice of the injury on March 23, 1995, and tendered payments to the claimant in the amount of $4,665. (Finding of Fact 6; Conclusions of Law 4). Furthermore, the ALJ's order reflects that he was not persuaded there were "mitigating circumstances" which warranted a lesser penalty.
Nor are we persuaded that the alleged mitigating circumstances compel a conclusion that the ALJ abused his discretion by imposing the maximum allowable penalty. The purpose of the statutory duty to file a written denial of liability is to make the injured worker aware of the legal ramifications of the situation and to provide the Director of the Division of Workers' Compensation (Director) with pertinent information concerning the employer's position on the issue of liability. Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984); Dorris v. Gardner Zemke Co., 765 P.2d 456 (Colo.App. 1987). The notice provides the Director with information to assist in its functions as guardian over the claim. Smith v. Myron Stratton Home, supra.
The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). An order exceeds the bounds of reason, where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993)
In this case, the ALJ's findings are supported by the undisputed facts and substantial evidence in the record. Furthermore, the statute allows for the imposition of a penalty equal to one day's compensation.
However, the respondent contends that the penalty was excessive because the claimant agreed to a continuance of the hearing; the claimant had verbal notice that the respondent was denying liability, the claimant received payments from the respondent; the claimant declined the offer of "light duty" employment, and the respondent was financially strained.
The respondent's payments during the claimant's disability may reflect a "good faith" effort to compensate the claimant for his injuries. However, the payments may also reflect an attempt by the respondent to stave off adjudication under the Workers' Compensation Act. See Smith v. Myron Stratton Home, 676 P.2d at 1200. In any case, the ALJ reduced the claimant's temporary disability award by the respondent's payments.
Moreover, there is no assertion that prior to June 21, 1996, the Director was given written notice that the respondent denied liability for the claimant's injuries. It follows that the claimant's awareness of the respondent's position does not necessarily mitigate the respondent's failure to comply with the statute.
IT IS THEREFORE ORDERED that the ALJ's order dated, August 22, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 27, 1997 to the following parties:
Rodolfo V. Nevarez, P.O. Box 2594, Avon, CO 81620
LML Services, Inc., Avon Auto Body, P.O. Box 62, Avon, CO 81620-0062
Employer Compliance Unit, Attn: Rebecca Greben (Interagency Mail)
Special Funds Unit, Attn: Barbara Carter (Interagency Mail)
Christian M. Lind, Esq., 1775 Sherman St., Ste. 1600, Denver, CO 80203-4313 (For the Respondents)
Brett S. Heckman, Esq., 1000 S. Frontage Road West, Ste. 203, Vail, CO 81657 (For the Claimant)
BY: _______________________