Opinion
W.C. No. 4-776-535.
March 2, 2010.
FINAL ORDER
The claimant and the respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated August 31, 2009 that found the claimant to have sustained a compensable injury, awarded medical and temporary total disability benefits, and designated an authorized treating physician (ATP), but denied the claimant's request for the imposition of monetary penalties. We affirm.
The ALJ found that the claimant sustained a compensable lower back injury when he tripped and fell at work. The ALJ awarded the claimant medical benefits, along with temporary total disability benefits. The ALJ found that the respondent employer violated § 8-43-404(5)(a)(I)(A), C.R.S. 2009 and Workers' Compensation Rules of Procedure Rule 8-2(A) by failing to provide the claimant with a list of two designated medical physicians at the time of his injury or after the conclusion of emergency care. However, the ALJ did not impose penalties because he concluded that under the circumstances Rule 8-2(A) provided a specific penalty provision by allowing the claimant to designate his authorized treating physician. Therefore, according to the ALJ, the general penalty provisions of § 8-43-304(1), C.R.S. 2009 were inapplicable. Nonetheless, the ALJ found that Dr. Knight was the claimant's ATP as designated by the claimant.
I.
The claimant appeals the ALJ's denial of his request for penalties under § 8-43-304(1). The claimant sought penalties against the respondents under § 8-43-304(1), C.R.S. 2009 of the Workers' Compensation Act (Act), which provides that penalties up to $500 per day may be assessed if an employer or insurer "violates any provision of articles 40 to 47 or this title, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel."
As we understand the claimant's argument, he asserts that he is entitled to penalties on the ground that the respondents failed to "recognize" Dr. Knight as his authorized treating physician and pay for her services, thereby effectively preventing him from obtaining medical treatment. The claimant does not dispute the ALJ's ruling to the extent that the ALJ denied penalties based on the respondents' failure to offer the claimant two physicians in the first instance under § 8-43-404(5)(a)(I)(A) and that determination is therefore binding on review. See City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162, 1165 (Colo. App. 2002) (party must specify particular argument or such argument is considered waived for purposes of further appeal).
According to the claimant the respondents' conduct violated § 8-43-404(5)(a)(I)(A) and Rule 8-2(D). The respondents contend that the claimant failed to raise this issue before the ALJ. In his application for a hearing the claimant identified the following grounds in support of his claim for penalties:
Penalties under § 8-43-204 [sic] for violation of § 8-43-405(5)(a)(I)(A) for failing in the first instance to provide Claimant a list of at least two physicians and for violation of W.CR.P. 8-2 for failure to acknowledge the authorized treating physician selected by the Claimant from 11/11/08, the date of the Claimant's designation to the present. Section 8-43-304(5)(a)(I)(A) C.R.S.
(Emphasis added). The claimant also raised the issue of penalties for failing to acknowledge his treating physician in his proposed order and brief. However, it does not appear from a review of the record that the claimant brought up the issue of the respondents' failure to pay for Dr. Knight's services until after he filed his petition to review. At the hearing the claimant characterized his selection of Dr. Knight as an authorized treating physician issue. Tr. (4/23/09) at 24-25.
We conclude that the claimant failed to raise the issue of penalties based on a failure to pay for Dr. Knight's services. See, e.g., Hanna v. Print Expediters, Inc., 77 P.3d 863, 865-66 (Colo. App. 2003) (issue of future medical benefits after MMI waived when not requested prior to order not reserving issue for future determination); see also Johnson v. Industrial Comm'n, 761 P.2d 1140, 1147 (Colo. 1988) (waiver may be implied when party's conduct manifests intent to relinquish right or privilege or acts inconsistently with assertion). The claimant's failure to identify by the time of the ALJ's order the nonpayment of Dr. Knight's medical care as a basis for penalties resulted in its waiver.
Regarding the claimant's assertion that the respondents are subject to penalties for not "acknowledging" Dr. Knight as the ATP, we conclude that the claimant failed to adequately allege a claim for penalties on that basis. See § 8-43-304(4), C.R.S., 2009 (applicant for penalties must "state with specificity" the grounds on which a penalty is sought). We have previously determined that the requirement for specificity serves two functions. First, it notifies the putative violator of the basis of the claim so that the violator may exercise its right to cure the violation. The specificity requirement also ensures the alleged violator will receive notice of the legal and factual bases for the penalty claim so that their rights to present evidence, confront adverse evidence, and present argument in support of their position are protected. See Major Medical Insurance Fund v. Industrial Claim Appeals Office, 77 P.3d 867 (Colo. App. 2003); Jakel v. Northern Colorado Paper Inc., W.C. No. 4-524-991 (October 6, 2003); Gonzales v. Denver Public School District No. 1, W.C. No. 4-437-328 (December 27, 2001); Stilwell v. B B Excavating Inc., W.C. No. 4-337-321 (July 28, 1999). The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo. App. 1990); Carson v. Academy School District #20, W.C. No. 4-439-660 (April 28, 2003).
The claimant's mere reference to a failure to "acknowledge" Dr. Knight as an ATP does not provide the respondents with sufficient information to know the basis of the penalty claim and to be able to defend the claim. Rule 8-2 deals primarily with the methods for the employer's initial referral of the claimant to a physician or provider. Subsection (D) of Rule 8-2 allows the claimant to select an ATP in the event that the employer fails to comply with the rule. The claimant did not specify a violation of Rule 8-2(D) or articulate how an alleged failure to "acknowledge" the ATP violated the rule. We find no reversible error under the circumstances.
II. A.
The respondents argue that the ALJ erred by finding that the respondent employer violated § 8-43-404(5)(a)(I) and Rule 8-2(A). Section 8-43-404(5)(a)(I)(A) requires the employer or insurer to "provide a list of at least two physicians, . . . in the first instance, from which list an injured employee may select the physician who attends said injured employee." The failure to tender the "services of a physician . . . at the time of injury" gives the employee "the right to select a physician or chiropractor." Rule 8-2(A) provides a framework for providing the required list of physicians and imposes additional requirements and time periods upon the employer or insurer. We find no error in the ALJ's determination that the employer violated § 8-43-404(5)(a)(I) and Rule 8-2(A).
The ALJ found that the claimant fell at work on November 7, 2008. A supervisor completed a report stating that the claimant immediately reported the injury to his supervisor. The supervisor transported the claimant to an emergency room where the claimant was examined, given a prescription for Percocet, and told to take a few days off from work. On November 10, 2008 the claimant visited Dr. Miranda-Seijo pursuant to the directions of the employer's human resources representative. The claimant subsequently visited the human resources representative on November 11, 2008. He told her that he had designated Dr. Knight as his ATP. The representative advised the claimant that she already received notice of the designation, but gave the claimant a document entitled "Designation of Medical Providers" that listed two such providers. However, the employer did not previously provide the claimant with a list of two designated medical providers. The employer therefore did not offer the claimant a choice of physicians at the time of his injury or after the conclusion of emergency care. These findings are supported by the record. E.g., Exhibit 19 (medical records pertaining to emergency visit); Tr. (4/23/09) at 66-67 (claimant describing fall at work and corresponding pain), 69-71 (claimant's notice of injury to supervisor, who accompanied claimant to emergency room for care), 78 (on November 10th employer's human resources representative advised claimant she received copy of letter regarding designation of Dr. Knight as claimant's ATP), 81-82 (claimant went to employer's human resources representative to notify her of his selection of ATP), 104-05 (claimant given employer's "Designation of Medical Providers" on November 11, 2008); Exhibit L (employer's "Designation of Medical Providers"). There is record support for the ALJ's findings as to the basis for imposing a penalty against the employer.
The respondents argue that the employer's conduct did not violate § 8-43-404(5)(a)(1)(A) or Rule 8-2(A). In support of their contention the respondents refer to the provisions in Rule 8-2(A)(1) and (C) that require an employer to provide the claimant with written notice of the two designated medical providers within seven days or seven business days, respectively, following the date that the employer knew of the claimant's injury. However, these provisions do not supplant the statutory obligation to provide a list of providers "in the first instance" pursuant to § 8-43-404(5)(a)(1)(A). Instead, the rule appears to require an employer to provide written documentation following an oral or "pre-injury" designation of providers after the date of injury or in the event the injury occurs somewhere other than the usual workplace. See Rule 8-2(A)(1) (list can initially be given verbally or through effective pre-injury designation, in which case written list must be furnished within seven business days after notice of injury); Rule 8-2(C) (if worker away from usual place of employment at time of injury he or she may be referred to physician in vicinity and employer must comply with requirements of subsection (A) within seven business days after notice of injury). The ALJ's determination regarding the respondent employer's violation of the statutory and regulatory scheme governing the provision of a treating physician is supported by applicable law and by the evidence. Section 8-43-301(8).
The respondents further assert that the ALJ erred by recognizing the claimant's choice of physician, Dr. Knight, as the claimant's ATP. Given the ALJ's findings as to the employer's failure to provide the claimant with a list of physicians in a timely manner, we find no error in the ALJ's designation of Dr. Knight as the ATP selected by the claimant.
B.
The respondents also argue that the hearing officer's findings of compensability and entitlement to temporary total disability and medical benefits are not supported by substantial evidence. Because the issues are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
In support of their contention the respondents argue that the claimant suffered from either a prior injury or from an injury sustained while weight lifting for personal reasons. The respondents refer to evidence in the record that could support its contention that the claimant did not suffer a compensable injury. However, the existence in the record of evidence that would support a contrary result provides no relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
We conclude that the ALJ's factual determinations concerning compensability are supported by substantial evidence. For instance, the claimant testified that he injured his lower back when he slipped on a floor mat at work and fell. Tr. (4/23/09) at 66-67. Dr. Vecchiarelli testified that the claimant's herniated disc and radiating pain were consistent with a slip and fall injury as described by the claimant. Tr. (4/23/09) at 38-39. The ALJ credited such testimony in finding a compensable injury.
The respondents further assert that the ALJ erred in awarding temporary total disability benefits because the claimant could perform his regular duties. However, the ALJ credited the claimant's testimony that he was required to maintain a "hunching position" at work, which was intolerable because of pain from his injury. Tr. (4/23/09) at 76-77. The ALJ also credited medically imposed work restrictions. Exhibit 20 at 79. The ALJ's determination that the claimant met his burden to prove a compensable injury and is entitled to benefits is supported by substantial evidence and is, therefore, binding on appeal. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
IT IS THEREFORE ORDERED that the ALJ's order dated August 31, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
JASON MARCELLI, ENGLEWOOD, CO, (Claimant).
ECHOSTAR DISH NETWORK, LITTLETON, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: JACKIE BONAVIDA, ENGLEWOOD, CO, (Insurer).
BUESCHER, GOLDHAMMER, KELMAN DODGE, PC, Attn: JOSEPH M GOLDHAMMER ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).