W.C. No. 4-219-046Industrial Claim Appeals Office.
June 21, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ) which imposed a penalty under § 8-43-304(1), C.R.S. (1995 Cum. Supp.). We affirm.
The claimant sustained an occupational disease which initially involved her right upper extremity. The claimant’s treating physician, Dr. Erman, opined that the claimant reached maximum medical improvement (MMI) on July 12, 1994. Dr. Erman was not a Level II accredited physician.
However, the respondents did not file an admission of liability concerning MMI, nor did they request an independent medical examination (IME) for the purpose of determining MMI. Neither did the respondents request an IME for purposes of determining the claimant’s degree of medical impairment.
The respondents did refer the claimant to Dr. Bernton, a physician of their own choosing, for purposes of conducting an IME. After examining the claimant in November 1994 and January 1995, Dr. Bernton issued a report on January 20, 1995 stating that the claimant was at MMI and had an impairment of seven percent of the right upper extremity and three percent of the left upper extremity.
Dr. Bernton’s report was received by the respondents on February 21, 1995. However, instead of filing an admission the respondents requested Dr. Erman to comment on Dr. Bernton’s report. The respondents also requested Dr. Bernton to state whether or not the left upper extremity problems were causally related to the industrial injury to the right extremity. On May 9, 1995, Dr. Bernton indicated that there was a causal relationship. Consequently, the respondents filed a Final Admission of Liability on June 5, 1995 for the right extremity, and on June 8, 1995 for the left upper extremity.
At the hearing on the claimant’s request for the imposition of a penalty, the claimant argued that respondents violated Rules of Procedure, Part IV(N)(4)(a) and (4)(d), 7 Code Colo. Reg. 1101-3 at 6.02-7. Specifically, the claimant argued that after Dr. Erman’s report of MMI, the respondents failed to file an admission concerning MMI or request an IME to establish the date of MMI. Similarly, the claimant argued that the respondents failed to refer the claimant to a Level II accredited physician for purposes of determining the claimant’s degree of medical impairment. However, the respondents’ adjusters testified that they were not required to take either action because this claim involves a “no lost time injury,” and because Dr. Erman opined that the claimant did not have any permanent impairment.
The ALJ concluded that the respondents violated Rules IV(N)(4)(a) and (4)(d) by failing to admit liability or obtain an IME to contest MMI, and by failing to refer the claimant to a Level II accredited physician for purposes of establishing the claimant’s impairment. Based on these violations the ALJ assessed a penalty of $300 per day from August 1, 1994 (twenty days after July 12, 1994) through the date of the hearing.
I.
On review, the respondents contend that the ALJ erred in assessing penalties because they are able to present a rational argument, based in law, that they were not obliged to comply with Rule IV(N)(4)(d). Specifically, the respondents argue that Rule IV(N)(4)(d) does not apply to this claim because the rule is inconsistent with § 8-42-107(8)(c), C.R.S. (1995 Cum. Supp.). The respondents reason that an IME, for purposes of determining the degree of medical impairment, applies only to whole person impairments, but not a scheduled impairment which exists in this case. In any event, the respondents argue that requiring an IME in these circumstances is inconsistent with a prior interpretation of the rule which was promulgated by the Director of the Division of Workers’ Compensation (Director) in an newsletter. Finally, the respondents assert that the claimant is being inconsistent by asserting that the respondents should be penalized for not obtaining an IME to determine MMI, and at the same time asserting that she is not at MMI for the left arm condition.
Whatever the merits of the respondents’ arguments, we conclude that they were waived because they were not raised at the time of the hearing. It is axiomatic that parties may not raise arguments on appeal which they did not raise before the ALJ. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905
(Colo.App. 1995).
Here, a review of the respondents’ arguments at the hearing, as well as the testimony of the respondents’ adjusters, does not indicate that the respondents made any of the arguments which they now make on appeal. The respondents did not assert that Rules IV(N)(4)(a) and (d) were inconsistent with §8-42-107(8)(c), or that the respondents were following an interpretive declaration of the Director, or that the claimant was being “inconsistent” in her arguments. Rather, the respondents’ defense was predicated on the now abandoned argument that they were not obliged to follow the rules because this is a “no lost time” injury and because Dr. Erman indicated there was no impairment Cf. Queen Liquor, Inc. v. Industrial Claim Appeals Office, Colo. App. 95CA1442, May 23, 1996 (not selected for publication) (CCIA waived argument that its actions were predicated on a rational interpretation of a Rule of Procedure where the rule was not raised before the ALJ.)
II.
Respondents have also raised arguments under the Eighth and Fourteenth amendments. However, we conclude, as we have in prior cases, that consideration of these arguments is beyond the scope of our jurisdiction. See Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971). Consequently, the respondents have failed to present grounds which afford us a basis to conclude that the ALJ erroneously imposed penalties for the respondents’ violation of Rule IV(N)(4).
III.
The claimant has requested that we award attorney fees on account of a frivolous appeal. We note that the respondents’ Eighth and Fourteenth Amendment arguments appear to be similar to those rejected by the Court of Appeals in the case of Pueblo School District No. 70 v. Toth, ___ P.2d ___ (Colo.App. No. 95CA0189, January 25, 1996), petition for certiorari pending. However, because the petition fo certiorari is still pending in Toth, we believe that the respondents should have the opportunity to preserve their arguments. Therefore, we do not perceive the appeal to be frivolous.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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 June 21, 1996 to the following parties:
Evangelina Alcazar, 3393 Arapahoe St., Denver, CO 80205
Colorado Contract Cut Sew, 38 E. 5th Ave., Denver, CO 80203-3402
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Amado L. Cruz, Esq., 6000 E. Evans, 1-428, Denver, CO 80222 (For the Claimant)
By: _______________________