Opinion
W.C. No. 4-508-548.
August 10, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant was responsible for the termination of employment and, therefore, barred by § 8-42-105 (4), C.R.S. 2003, from receiving additional temporary disability benefits. The ALJ also denied penalties for the respondents' violation of § 8-42-107.2 (4), C.R.S. 2003. We set aside the penalty order and remand for the entry of a new order on that issue.
On February 19, 2001 the claimant suffered a right elbow injury. The respondents admitted liability for temporary total disability benefits commencing July 2001 and terminating October 1, 2001, the date the claimant returned to modified employment driving a truck to deliver and pick up roll-off dumpsters. However, the respondents admitted liability for temporary partial disability benefits.
On January 29, 2002, an authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI). The respondents filed a Final Admission of Liability (FAL) on February 13, 2002, which listed the date of MMI as January 29, 2002 and terminated temporary partial disability benefits effective that date. The respondents also admitted liability for scheduled disability benefits consistent with the ATP's rating.
On April 18, 2002, a Division-sponsored independent medical examination (DIME) physician determined the claimant was not at MMI. In response, the respondents filed an amended General Admission on June 25, 2002, which admitted liability for "MEDICAL BENEFITS ONLY AS CLAIMANT DEEMED NOT AT MMI PER DIME PHYSICIAN." (Emphasis in original).
The ALJ found that on April 23, 2002, the claimant told the employer he was physically unable to perform the duties required of his modified employment and requested a different assignment. The employer told the claimant there was no other position available and that he could continue the modified employment, resign or refuse to work and be terminated for job abandonment. The ALJ determined the claimant chose to resign effective April 26, 2003. However, the claimant did not sign resignation papers on April 26. Nor did the claimant call in or report to work between April 29 and May 3. Therefore, on May 6, the employer discharged the claimant.
The claimant subsequently applied for a hearing and requested an award of temporary total disability benefits from April 29 to December 17, 2002. The claimant also requested penalties for the respondents' failure timely to file an admission or application for hearing upon receipt of the DIME report.
The ALJ found the claimant voluntarily chose to resign from modified employment within his restrictions, but then changed his mind and failed to notify the employer by calling in or showing up for work. Consequently, the ALJ found the discharge for three days of "no call/no show" was precipitated by the claimant's volitional actions. Under these circumstances, the ALJ determined the claimant was responsible for the termination of employment and barred from receiving temporary disability benefits after April 29, 2002.
On the issue of penalties, the ALJ determined the respondents violated § 8-43-203 (2) (b) (II), C.R.S. 2003 and § 8-42-107.2 (4), by failing to file an admission or request a hearing within 30 days of the mailing of the DIME report. The ALJ also implicitly determined the violation was objectively unreasonable. However, the ALJ determined the respondents cured the violation 15 days prior to the filing of the claimant's Application for Hearing and the claimant failed to present "clear and convincing" evidence the respondents knew or should have known of the violation. Therefore, the ALJ denied the request for penalties.
I.
On review, the claimant contends he could not physically perform the modified employment because it required 6 to 9 hours of repetitive grasping to drive a truck and over 30 pounds of pressure to tie tarps to the truck. The claimant also contends there is no evidence to support the ALJ's finding that Dr. Woolman approved the modified employment offer. Under these circumstances, the claimant argues he was constructively discharged and his resignation was not voluntary. Therefore, he argues the ALJ erred in finding he was responsible for the termination of employment. We disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103 (1), C.R.S. 2003. Section 8-42-103 (1) (g), C.R.S. 2003, and identical language in § 8-42-105 (4) (termination statutes), provides that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury."
In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the Court of Appeals held that the term "responsible" introduces into the Act the limited concept of "fault" used in termination cases before the Supreme Court's decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). A claimant is "responsible" if the claimant precipitated the termination by a volitional act. In Padilla v. Equipment Corp. 902 P.2d 414, 416 (Colo.App. 1994), the court stated that "at a minimum, to be deemed at fault or responsible for his discharge, claimant must have performed some volitional act or otherwise exercised a degree of control over the circumstances resulting in the termination."
In most cases the question of whether the claimant acted volitionally is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ's determination unless the ALJ's finding are not supported by the record. Section 8-43-301 (8), C.R.S. 2003.
The ALJ found that:
"Medical records from Timberline Medical Clinic indicate that Dr. Woolman was aware that Claimant was working as a roll off driver, and that Claimant's duties as a roll off drive were approved by Dr. Woolman as being within the Claimant's medical restrictions." (Finding of Fact 4).
Dr. Weibel and Dr. Woolman are both on staff at the Timberline Medical Center. The record contains evidence that Dr. Weibel released the claimant to driving and "roll-off work." (Respondents' hearing exhibits A). Based upon this evidence the ALJ could reasonably infer that Dr. Woolman was aware the claimant was working as a roll-off driver.
Furthermore, we recognize that Dr. Woolman's February 1, 2002 report is subject to conflicting inferences insofar as Dr. Woolman stated that the claimant:
"continued to work [after July 12, 2001] with some work limitations. Currently he continues to have pain with gripping, pinching, or pulling efforts such that he cannot perform many of the requirements of his job."
However, read in context, the ALJ could reasonably infer that Dr. Woolman found the claimant was capable of performing the modified employment he had "continued" to perform after July 12, 2001. However, Dr. Woolman opined the claimant was not physically capable of returning to the requirements of his regular employment. Further, these inferences support the ALJ's finding that Dr. Woolman approved the claimant's release to modified employment delivering roll-off dumpsters.
In any case, even if the ALJ erroneously identified Dr. Woolman as the attending physician who approved the modified employment, the error is harmless because there is substantial evidence that the claimant was released to perform the modified employment by Dr. Weibel. Furthermore, the employer's witness Rick Hurt (Hurt) testified that a physician approved the roll-off driver job for the claimant. (Tr. p. 25).
In addition, there was a direct conflict between the claimant and the employer concerning whether the claimant quit the employment or was fired. Within his sole prerogative, the ALJ resolved the conflict in favor of the respondents. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Further, the ALJ could, and did, find that the employer terminated the claimant's employment as a result of the claimant's voluntary decision to refuse modified employment within his restrictions and this determination supports the denial of additional temporary disability benefits. Colorado Springs Disposal v. Industrial Claim Appeals Office, supra.
II.
The claimant also contends the ALJ erred in failing to impose penalties for the respondents' failure timely to file a General Admission of Liability or application for hearing required by § 8-42-107.2 (4). We agree, and remand the matter for further proceedings concerning the amount of penalty to be imposed.
Section 8-43-304 (1), C.R.S. 2003, authorizes the imposition of penalties up to $500 per day against any employer or insurer who violates a provision of the Workers' Compensation Act (Act). Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). Section 8-43-304 (4), C.R.S. 2003, provides that if the violation is cured within twenty days of an application for hearing on the issue of penalties, no penalty may be imposed in the absence of "clear and convincing evidence" that the violator "knew or reasonably should have known" of the violation.
Section 8-42-107.2 (4) provides that within thirty days after the DIME physician's report is mailed, the insurer "shall either file its admission pursuant to section 8-43-203 or request a hearing before the division contesting one or more of the IME's findings or determinations contained in such report." Section 8-42-107.2 (4) is part of an overall statutory scheme designed to ensure the prompt payment of benefits without the necessity of litigation in cases which do not present a legitimate controversy. See Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004).
Here, the ALJ found the respondents violated § 8-42-107.2 but cured the violation by filing the June 25, 2002 General Admission of Liability. The ALJ also found the claimant failed to present any evidence the respondents knew or should have known of the violation such as "testimony from the adjuster as to her knowledge of the statutes and rules." (Conclusions of Law 14).
Contrary to the ALJ's determination, parties to a workers' compensation claim are presumed to know the applicable law. Midget Consol. Gold Mining Co. v. Industrial Commission, 64 Colo. 218, 193 P. 493 (Colo. 1920); Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981); cf. Federal Life Insurance Co. v. Wells, 98 Colo. 455, 56 P.2d 936 (Colo. 1936) (insurance adjuster presumed to understand the meaning of the word "coverage" which is used generally in the insurance business and was used regularly by the adjuster). This presumption aids a party in meeting its burden of proof. Union Ins. Co. v. RCA Corp., 724 P.2d 80 (Colo.App. 1986). Furthermore, C.R.E. 301 provides that the party against whom the presumption is directed must come forward with evidence to rebut the presumption.
Neither the claimant nor the respondents presented any evidence concerning the reason for the respondents violation of § 8-42-107.2. It follows that in the absence of specific evidence to the contrary, the ALJ was required to presume that the respondents knew the requirements of § 8-42-107.2. Because the respondents' knew the rule and did not present any factual or legal argument that their actions did not violate the rule, the record compels the conclusion that the respondents' knew or should have known that their actions violated § 8-42-107.2. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion the issue is a question of law); Kelly v. Kaiser-Hill Company LLC, W.C. No. 4-332-063 (August 11, 2000); Rogan v. United Parcel Service, Inc., W.C. No. 4-314-848 (March 2, 1999). Therefore, the ALJ erred in refusing to impose a penalty, and the matter must be remanded to the ALJ for the assessment of a penalty up to $500 per day, for each day the respondents failed timely to comply with § 8-442-107.2.
In view of our disposition we do not consider the claimant's contention the ALJ erred in finding the respondents cured their violation of § 8-42-107.2.
III.
Finally, we perceive no error in the ALJ's refusal to impose penalties for the respondents' alleged failure to provide medical benefits consistent with the June 25 admission. As found by the ALJ, the claimant did not timely endorse this penalty claim for hearing. Thus, the ALJ properly denied the penalties on due process grounds. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990).
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 2003, is reversed insofar as it denied penalties for the respondents' violation of § 8-42-107.2 and the matter is remanded to the ALJ for a new order concerning the amount of penalties to be imposed. In all other respects the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Darren Varga, Estes Park, CO., A1 Sewer Master Mountain Water, Denver, CO., ACE Insurance Company, Englewood, CO, Martha Maestas, IME Coordinator, Kat Pennucci, Special Funds Unit, Bob L. Ring, Esq., Fort Collins, CO, for Claimant.
Kathleen Mowry Fairbanks, Esq., Denver, CO, for Respondents.