W.C. No. 4-206-420Industrial Claim Appeals Office.
July 24, 2000
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) which denied her claim for temporary partial disability benefits between October 12, 1994, and July 6, 1995, and denied a request for penalties based on the insurer’s alleged failure to pay permanent partial disability benefits in accordance with two orders of Administrative Law Judge Wells (ALJ Wells). The claimant alleges she was denied due process of law because the respondents failed to disclose exhibits, and that the ALJ’s findings are not supported by the evidence. We affirm.
The claimant sustained a back injury on March 9, 1994, while performing sedentary work (telemarketer) for respondent Futurecall. The insurer admitted liability for brief periods of temporary total disability, but the claimant returned to her regular employment by July 15, 1994, and performed her duties without restriction. The ALJ found the claimant was then terminated by Futurecall for reasons unrelated to the injury. (Tr. p. 80). Thereafter, the claimant procured sedentary work which the ALJ described as a “desk job in which she did not have to lift anything heavier than a pencil.” The claimant remained in this sedentary job until reaching maximum medical improvement (MMI) on July 6, 1995.
On January 25, 1996, the respondents filed a final admission of liability for permanent partial disability benefits based on a 12 percent whole person medical impairment. The admission reflected permanent disability benefits were payable at the rate of $150 per week from July 6, 1995, through July 11, 1996, for a total of $7,976.61. The ALJ found, based on the testimony of the insurance adjuster and claimant’s Exhibit 3 (warrant) that on January 26, 1995, the insurer paid $4,500 of permanent partial disability benefits in a lump sum. The ALJ further found, based on the insurer’s payment records, copies of checks, and the adjuster’s testimony, that the remaining admitted benefits were paid at the rate of $300 every two weeks.
The claimant contested the final admission of liability on the issues of average weekly wage and permanent partial disability. In an order dated October 25, 1996, ALJ Wells determined the claimant is entitled to permanent partial disability benefits based on medical impairment of 18 percent of the whole person, for a total award of $12,116.15. The order permitted the respondents to “take full credit for any permanent disability benefits paid pursuant previous admissions.” The order further determined the claimant’s average weekly wage was $213.92, which is slightly higher than the admitted average weekly wage. In a Corrected Order dated December 2, 1996, ALJ Wells ordered that the previously admitted periods of temporary total disability be paid at the rate of $142.61, per week, not the admitted rate of $140.83 per week.
ALJ Stuber found, based on the testimony of the adjuster, that ALJ Wells’ orders resulted in an increased award (beyond that previously paid) of temporary and permanent disability benefits, plus interest, totaling $4,199.15. Further, ALJ Stuber found the insurer issued a check in this amount on December 19, 1996, which was received, endorsed, and cashed by the claimant. (Tr. pp. 39, 55).
Under the circumstances, the ALJ Stuber found the claimant failed to prove she was “disabled” between October 12, 1994, and July 6, 1995. In support, the ALJ cited evidence the claimant returned to and performed her preinjury job through July 1994, and subsequently obtained and performed sedentary employment until the date of MMI. The ALJ also cited the report of Dr. Fitzgerald, the treating physician, dated November 3, 1994, stating the claimant could work “full-time at a sedentary level.” Consequently, the ALJ denied the claim for temporary partial disability benefits.
ALJ Stuber also denied the claim for penalties based on the insurer’s alleged failure to comply with the orders of ALJ Wells. First, ALJ Stuber concluded the specific basis of the claim for penalties was failure to pay permanent partial disability benefits. Consequently, the ALJ concluded that the request for penalties is governed by the specific provisions of §8-43-401(2)(a), C.R.S. 1999, not the general penalty provision of § 8-43-304(1), C.R.S. 1999. Further, ALJ Stuber found the respondents paid all permanent disability benefits ordered by ALJ Wells and, therefore, did not willfully withhold any permanent partial disability payments.
I.
On review, the claimant first contends she was denied due process of law because she was not notified of the exhibits which the respondents submitted into evidence at the commencement of the hearing. However, we find no error.
We agree with the claimant’s general proposition that due process of law entitles the parties to be notified of the evidence to be considered by the ALJ in ruling on the claim. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, we find no violation of that principle here.
At the commencement of the hearing, the respondents offered into evidence various pieces of documentary evidence, including medical records, pleadings, orders, and insurance payment records. The claimant did not object to the admission of any of these documents except photocopies of checks purportedly issued by the insurer to the claimant. The basis of the objection to the checks was that the respondents had not established the authenticity of the claimant’s signature endorsing the checks. Based on this objection, the ALJ excluded the checks until the claimant’s signature was subsequently authenticated during the course of the hearing. (Tr. p. 76). At no time did the claimant express surprise at the documents offered by the respondents, nor did she request a continuance to refute the documents. (Tr. pp. 17-20).
A party may not predicate error on the admission of evidence unless the party registered a contemporaneous objection stating the specific ground for the objection. C.R.E. 103(a)(1); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Moreover, a party may not raise issues on appeal which were not raised before the ALJ. Instead, issues not raised to the ALJ are waived. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). Thus, the claimant’s failure to object to the documents offered by the respondents waived any possible objection based on due process. This is not a case, such as Hendricks, where the ALJ considered evidence or ruled on an issue without notifying the parties that he intended to do so. It is clear from the transcript that the ALJ was admitting the respondents’ documents as evidence, and it was incumbent on the claimant to object if she believed there was a basis for excluding the evidence.
Similarly, we perceive no error in the ALJ’s handling of the subpoena issued to the insurance adjuster. In fact, the claimant never asserted the documentation provided at the hearing was incomplete or insufficient. Neither did the claimant object that the documents were presented in the form of an exhibit offered by the respondents rather than directly through testimony. In the absence of any objection to the procedure followed here, we perceive no prejudice to the claimant’s substantial rights.
II.
The claimant next contends ALJ Stuber denied her “due process of law and equal protection of the laws” by denying temporary partial disability benefits based on her ability to perform sedentary employment. We perceive no error.
Section 8-42-106(1), C.R.S. 1999, provides for the payment of benefits in cases of temporary partial disability. Consequently, in order to receive temporary partial disability benefits it is incumbent on the claimant to prove the injury caused a “disability.” PDM Molding, Inc. v. Stanberg, 890 P.2d 542 (Colo. 1995).
The term disability, as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage earning capacity as demonstrated by the claimant’s inability to “resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of “disability” may be evidenced by a complete inability to work, or by restrictions which impair the claimant’s ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Chavez v. Manpower, W.C. No. 4-420-518 (May 11, 2000); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
The question of whether the claimant has proven a medical incapacity which impairs her ability to perform regular employment is one of fact for determination by the ALJ. In making this determination, the ALJ is not restricted to considering medical evidence, nor is he required to give any special weight to the opinions of the treating physician. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Because the issue of disability is factual nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999.
Here, the claimant was seeking to establish partial disability commencing in October 1994 and continuing through the date of MMI. Although the evidence may establish a loss of earnings during the disputed period of time, the record supports the ALJ’s determination that the claimant was not physically
restricted from performing her regular duties. The claimant’s arguments notwithstanding, the record demonstrates the claimant performed sedentary duties at the time of the injury, and returned to those duties prior to the period for which she seeks benefits. Moreover, the claimant obtained sedentary employment subsequent to her discharge by Futurecall, which supports the ALJ’s inference that she was physically able to perform her preinjury duties. Further, as the ALJ found, Dr. Fitzgerald’s November 3, 1994, report substantiates the conclusion the claimant was capable of performing her preinjury duties. Although the same report indicates the claimant should not perform telemarketing duties until the claimant resolves “some of the emotional issues about telemarketing,” the ALJ was not required to conclude that these emotional issues constituted injury-related restrictions. Instead, the ALJ could infer that the issues involved the claimant’s attitudes towards her employment, not a functional restriction caused by the injury. While it is possible the ALJ could have drawn other inferences from the record, we may not substitute our judgment for his concerning the weight of the evidence, the credibility of the witnesses, or the inferences to be drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Neither did ALJ Stuber misinterpret § 8-42-106(1) in concluding that temporary partial disability benefits are not calculated based on the claimant’s alleged “loss of earning capacity.” Admittedly, the predecessor statute directed that temporary partial disability benefits be based on “sixty-six and two-thirds percent of the impairment of [the claimant’s] earning capacity.” Hendricks v. Industrial Claim Appeals Office, supra. However, in 1991, the statute was amended to its current form, which provides that temporary partial disability benefits are based on the “difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability.” 1991 Colo. Sess Laws, ch. 219 at 1306. We have previously held that the purpose of the statutory change was to modify the statute, as interpreted by Hendricks, so that temporary partial disability benefits are based on a calculation of actual wage loss, not “loss of earning capacity.” Schemmerling v. Pioneer Centers, Inc., W.C. No. 4-124-462 (July 26, 1993). We see no reason to depart from our conclusion in Schemmerling.
The claimant’s remaining arguments on this issue are without merit. Insofar as the claimant is making a constitutional attack on the temporary partial disability statute, we are without jurisdiction to address that issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
III.
Finally, the claimant contests ALJ Stuber’s denial of penalties based on the respondents’ alleged failure to pay permanent partial disability benefits when due. The claimant challenges the ALJ’s findings of fact, and argues that she is entitled to penalties under § 8-43-304(1). We find no error.
Section 8-43-304(1) is a residual penalty clause which applies when no other provision of the Act prescribes a penalty for the conduct in question. Holliday v. Industrial Claim Appeals Office, 997 P.2d 1212 (Colo.App. 1999), cert. granted, May 15, 2000; Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997). Section 8-43-402(2)(a), C.R.S. 1999, provides that an insurer which “willfully withholds permanent partial disability benefits” within thirty days of when due, “must pay a penalty to the division of ten percent of the amount of such benefits due.”
At the commencement of the hearing, the claimant’s representative specifically stated the basis of the claim for penalties was “nonpayment of” permanent partial disability benefits. (Tr. p. 9). This statement was entirely consistent with the prehearing conference order which noted the basis of the claim for penalties was the insurer’s alleged failure to pay permanent partial disability benefits between February 8, 1996, and July 11, 1996. Consequently, the ALJ correctly ruled that, in light of the claimant’s allegations, the Act provides a specific penalty for the disputed conduct under § 8-43-402(2)(a). Thus, penalties may not be assessed under § 8-43-304(1).
Moreover, the record fully supports the ALJ’s determination that the respondents did not willfully withhold any permanent partial disability benefits. The testimony of the respondent’s adjuster, the records of payments and the copies of the checks themselves provide ample basis for the ALJ’s finding the claimant was paid all permanent partial disability benefits when due, including the benefits owed between February and July 1996. Although the claimant now suggests the basis of the claim for penalties was withholding temporary disability benefits, the claimant is not free to make that argument in light of her representative’s statements to the ALJ at the commencement of the hearing. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that ALJ Stuber’s order dated February 11, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. 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 July 24, 2000
to the following parties:
Patricia J. Al-Hafeez, Faruq Al-Hafeez, 855 Mt. Werner Circle, Colorado Springs, CO 80906
Futurecall Telemarketing West, Inc., 2550 Tenderfoot Hill St., Colorado Springs, CO 80906-3998
Barbara Carter, Special Funds, Division of Workers’ Compensation — Interagency Mail
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy