Opinion
W.C. No. 3-112-344
September 8, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which partially denied the claimant's request for temporary total disability benefits, and denied a penalty based upon the Colorado Compensation Insurance Authority's (CCIA) failure timely to admit or deny liability. We affirm in part, set the order aside in part, and remand for a new order.
The ALJ's findings may be summarized as follows. The claimant sustained a compensable injury to her arm and shoulder on June 16, 1989, while performing maintenance work for the respondent-employer (School District). The ALJ found that the claimant underwent a long course of conservative treatment, but reached maximum medical improvement (MMI) on May 18, 1992, as reported by her authorized treating physician, Dr. Bachman.
The ALJ found that, between March 13, 1991 and April 15, 1991, the claimant "took ten days of sick leave" because she was disabled by the injury. However, the ALJ declined to award temporary disability benefits for this period of time because he found that the claimant received her regular monthly salary, and School District employees "are not paid for accumulated sick leave upon termination of their employment."
The ALJ also found that there was conflicting evidence concerning when the claimant reached MMI. However, the ALJ was persuaded by the opinion of Dr. Bachman, and rejected evidence that the claimant's condition subsequently "deteriorated so that she is no longer" at MMI. Thus, the ALJ denied temporary total disability benefits for periods after May 18, 1992.
Finally, the ALJ rejected the argument that the claimant was entitled to a penalty based upon the CCIA's failure timely to admit or deny liability. The ALJ found that, in August 1989, the School District reported the claimant's injury to the CCIA as a no-lost-time injury. The ALJ also found that when Dr. Bachman opined that the claimant had reached MMI, the doctor did not mention "permanent impairment." The ALJ conceded that, in July 1992, the claimant sent correspondence to the CCIA asserting the existence of "permanent impairment from her injury."
Under these circumstances, the ALJ stated that he was "convinced that Respondents acted reasonably in not filing an admission of liability" following the initial report of injury. Specifically, the ALJ stated that the CCIA acted "reasonably in concluding the case was a non-lost-time claim for which an admission was not required."
I.
On review, the claimant first contends that the ALJ erred in determining that she reached MMI on May 18, 1992, and in denying the claim for subsequent temporary disability benefits. The claimant cites evidence that, subsequent to May 1992, she received various forms of medical treatment including massage therapy and recommendations for trigger point injections. The claimant also contends that the respondents unreasonably denied authorization for additional treatment. We reject these arguments.
Under the law applicable to this claim, MMI exists when the underlying condition causing the disability has become stable, and nothing further in the way of treatment will improve that condition. Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). Determination of MMI is a factual matter for the ALJ. Golden Age Manor v. Industrial Commission, 716 P.2d 153 (Colo.App. 1985), overruled on other grounds, 783 P.2d 279.
Because MMI is a factual matter, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). The weight and credibility to be assigned the evidence, including expert medical evidence, falls within the ambit of the ALJ as fact finder. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, Dr. Bachman opined that the claimant reached MMI in May 1992, though he also stated that she could "return for increasing symptoms." Dr. Bachman's opinion that the claimant was at MMI was corroborated by the independent medical examiner Dr. Rosenberg, who opined that the claimant's condition had resolved.
It is true that the evidence cited by the claimant might have permitted a contrary result or conclusion, however, we may not substitute our judgement for that of the ALJ concerning the significance and weight to be accorded this evidence. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Moreover, the fact that the claimant may have received some medical treatments after MMI is not necessarily inconsistent with a finding of MMI. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988) (claimant entitled to continuing medical treatment, after MMI, to maintain condition).
The claimant has also argued that she was "prejudiced" by the respondents' failure to authorize a functional capacities evaluation and additional medical treatments subsequent to the date of MMI. However, the respondents retained the right to choose the treating physician in the first instance, and were not obliged to provide treatments which were inconsistent with those recommended by the authorized treating physician. This is not a case in which the treating physician has refused to provide treatment for reasons unrelated to his medical judgement. Cf. Ruybal v. University of Colorado, 768 P.2d 1259 (Colo.App. 1988).
II.
The claimant next contends that the ALJ erred in denying temporary total disability benefits for the period March 13, 1991 through April 15, 1991. The claimant argues that, because she was charged for sick leave during this period, the mere fact that she received her regular paycheck does not preclude an award of temporary total disability benefits. Conversely, the respondents argue that because the claimant sustained no "actual wage loss" she is not entitled to temporary total disability benefits. We agree with the claimant.
Public Service Co. v. Johnson, 789 P.2d 487 (Colo.App. 1990), is dispositive. In Johnson, the court held that a claimant was entitled to temporary total disability benefits where the employer paid the claimant's regular salary but charged him for sick leave during the disputed period. In support of this result, the court relied on former §§ 8-52-107(2) (4), C.R.S. (1986 Repl. Vol. 3B), [currently codified at §§ 8-42-124(2) (4), C.R.S. (1995 Cum. Supp.)], which allow a claimant to receive direct payment of temporary benefits where an employer charges him for sick leave. The court also stated that, because the statutes make no distinction between sick leave benefits which can be "cashed out" and those which cannot, it is immaterial whether an employer is required to make payment for earned sick leave upon termination of the claimant's employment.
Here, the ALJ found that the claimant accrued sick leave, and that she was required to use the sick leave while she was disabled in March and April 1992. The fact that the sick leave could not be "cashed out" upon termination of her employment did not disqualify it as earned leave during the period of her employment. Therefore, the ALJ's denial of temporary benefits must be reversed, and the respondents ordered to pay temporary total disability benefits for the disputed period. Public Service Co. v. Johnson, supra.
The respondents argue that there was no evidence that the claimant was on sick leave. However, a portion of the claimant's testimony supports the ALJ's finding. (Tr. p. 14). The claimant has also argued that she is entitled to temporary total disability benefits because the respondents failed to provide discovery. We need not consider this argument in view of the disposition reached here.
III.
The claimant's final contention is that the ALJ erred in failing to assess a penalty under former §§ 8-53-102(1) (2), C.R.S. (1989 Cum. Supp.), [currently codified with changes at §§ 8-43-203(1) (2), C.R.S. (1995 Cum. Supp.)], based on the CCIA's failure timely to admit or deny liability. Because we agree with the claimant's argument concerning notice of permanent disability, we remand for entry of a new order on the penalty issue.
Former § 8-53-102(1) provides that an insurer is required to admit or deny liability within twenty-five days after "notice or knowledge of an injury . . . which disabled [the claimant] for more than three shifts or three calendar days or results in permanent physical impairment." The last sentence of subsection (1) also states that where the first report of injury shows that the claimant was disabled for three days or less, the insurer is not required to file an admission or denial of liability until "knowledge of or notice of claim for compensation." The claimant's argument is that her July 1992 written notice claiming permanent impairment triggered the CCIA's responsibility to admit or deny liability under the first sentence of the statute. The CCIA's position is that, because this was initially reported as a no-lost-time injury, the last sentence of subsection (1) did not require an admission or denial until the claim was filed in 1994. In our view, the claimant's analysis is correct.
In Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984), the Court of Appeals held that a respondent receives sufficient notice of a disabling injury, such that it must admit or deny liability, when it has "some knowledge" of facts indicating "to a reasonably conscientious manager that the case might involve a potential compensation claim." In Jones, the court held that an employer's duty to admit or deny was triggered where the claimant had complained of pain and stiffness in his knee, and a physician submitted a report connecting the claimant's employment to his need for surgery.
Here, in May 1992, the treating physician submitted a report stating the claimant was at MMI. Although, as the ALJ found, the physician did not specifically mention "permanent impairment," he did state that the claimant had continuing symptoms and that she might return "for increasing symptoms." Moreover, in July 1992, the claimant explicitly notified the CCIA that she was claiming permanent disability as a result of the injury.
Under these circumstances, we conclude that, by July 1992, the CCIA possessed sufficient information that a "reasonably conscientious manager" would have recognized that this case involved a "potential compensation claim" for permanent disability. The fact that this information was partially provided by the claimant's treating physician and partially by the claimant does not change the result. Jones v. Adolph Coors Company, supra; see also Gallegos v. Green Construction Co., 754 P.2d 1177 (Colo.App. 1987).
We reject the CCIA's argument that, because the claim was initially reported as a no-lost-time injury, the final sentence of subsection (1) absolved it of any responsibility to file an admission or denial until the claimant filed the claim for benefits. Rather, we read § 8-53-102(1) as imposing on insurers a continuing duty to admit or deny liability upon receipt of notice of a lost-time injury or a permanently impairing injury. We view the last sentence as imposing an outside limit for filing an admission or denial of liability in cases where the insurer has not received prior notice of a lost-time injury or a permanently impairing injury.
Our construction of the statute is consistent with the requirement that statutes be read so as to give a consistent, harmonious, and sensible effect to all their parts. See Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). In this regard, we note that the requirement to admit or deny liability upon notice of a permanently impairing physical injury would make little sense if the CCIA's reading of the statute were correct. In most cases, the existence of a permanently impairing physical injury will not be immediately apparent at the time the injury occurs. Had the General Assembly not desired to impose a continuing duty to admit or deny liability upon notice of a permanently impairing injury it could simply have deleted reference to permanently impairing injuries from the statute. However, it did not do so, and we decline to read the statute in the manner suggested by the CCIA.
Moreover, we conclude that our interpretation of the statute is consistent with Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Although not explicitly determined in Campbell, the case suggests that if an initial injury involves no lost time, insurers carry a duty to admit or deny liability if they subsequently receive information that the claimant has lost time from work.
We have considered the CCIA's argument that imposition of a penalty for failure timely to admit or deny is discretionary with the ALJ, and therefore, we need not remand the matter. However, as we understand the ALJ's order, he has determined that the circumstances of this case do not support the imposition of a penalty under the statute, and has not exercised his "discretion" to relieve the CCIA of liability for an otherwise justifiable penalty. Therefore, we find this argument unpersuasive.
We hold that the circumstances would support imposition of a penalty twenty-five days after the CCIA received the claimant's assertion that she was suffering from permanent disability. Here, the ALJ found that the CCIA received notice on July 24, 1992. Therefore, any penalties should commence twenty-five days thereafter, or on August 18, 1992. Section 8-53-102(1). However, the imposition of a penalty, and the amount thereof, is discretionary with the ALJ and we remand the matter for a determination of the amount of the penalty, if any.
IT IS THEREFORE ORDERED that the ALJ's order, dated March 20, 1995, is affirmed insofar as it denied temporary disability benefits subsequent to May 18, 1992.
IT IS FURTHER ORDERED that the ALJ's order is reversed insofar as it denied temporary total disability benefits for the period March 13, 1991 through April 15, 1991.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it denied a penalty for failure timely to admit or deny liability. On this issue, the matter is remanded for entry of a new order consistent with the views expressed herein.
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. (1995 Cum. Supp.).
Copies of this decision were mailed September 8, 1995 to the following parties:
Yvonne L. Rawson, P.O. Box 1722, Mesquite, NV 89024
Ridgway School District R-2, P.O. Box 230, Ridgway, CO 81432-0230
Colorado Compensation Insurance Authority, Attn: D. A. Thomas, Esq. (Interagency Mail)
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
Thomas W. Blake, Esq., 744 Horizon Court, Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________