IN RE ANDERSON-CAPRANELLI, W.C. No. 4-416-649 (06/16/03)


IN THE MATTER OF THE CLAIM OF TAUNIA ANDERSON-CAPRANELLI, Claimant, v. REPUBLIC INDUSTRIES INC. d/b/a CHESBROWN AUTOMOTIVE, Employer, and LIBERTY MUTUAL INSURANCE CO., Insurer, Respondents.

W.C. No. 4-416-649.Industrial Claim Appeals Office.
June 16, 2003.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied certain workers’ compensation benefits and penalties. We affirm.

The claimant suffered admitted injuries in a motor vehicle accident on October 6, 1998. Dr. Aylor placed the claimant at maximum medical improvement (MMI) on June 5, 2000, with 8 percent whole person impairment. Dr. Aylor also opined the claimant’s S1 joint dysfunction had resolved.

On September 26, 2000, the respondents filed a Final Admission of Liability which admitted liability for permanent partial disability benefits based on an average weekly wage (AWW) of $330 which was computed based on an hourly rate of pay of $8.25 per hour and a 40 hour work week. The respondents also admitted liability for going medical treatment to maintain the claimant’s condition. The ALJ found the claimant timely objected to the Final Admission and requested a hearing on all issues except MMI and medical impairment.

Based upon the evidence presented at a hearing on September 12, 2002, the ALJ granted the respondents’ request for an offset and denied the claimant’s requests for additional permanent disability benefits, temporary disability benefits, certain medical benefits, and penalties. The claimant timely appealed.

I.
The claimant contends she presented prima facie evidence that her AWW should be increased to include the conversion cost of group health insurance provided by the respondent-employer. The claimant argues that because the respondents failed to refute this evidence, the ALJ erred in failing to award additional permanent partial disability benefits based on the increased AWW. We disagree.

Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.

The claimant bears the burden of proving entitlement to benefits by a preponderance of the evidence. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). Whether the claimant sustained her burden of proof is a question of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). This standard also affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence, and we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).

Permanent impairment benefits are calculated using the AWW, which in turn is based on the money rate at which the services rendered were recompensed under the contract of hire in force at the time of the injury. Section 8-40-201(19)(a), C.R.S. 2002. Section 8-40-201(19)(a), provides that upon termination of the employee’s group health insurance, the AWW includes the employee’s “cost of conversion to a similar or lesser plan.”

The claimant testified that at the time of the injury she was receiving group health insurance benefits from the respondent-employer. She added that when she resigned to accept other employment she received a “COBRA” letter that listed the conversion cost of the group health insurance as $400. (Tr. pp. 34, 37). However, the claimant did not produce the COBRA letter or any evidence that her “research” revealed the actual conversion cost to be $400. Indeed, her answers to interrogatories stated she not have any documentation that her AWW is greater than $330. Further, her claim for Workers’ Compensation benefits did not allege the employer provided group health insurance. (Respondents’ Exhibit B). To the contrary, the claim listed an AWW of $330.

Based upon this evidence, the ALJ found the claimant’s testimony concerning the group health insurance lacked credibility. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to credit the claimant’s testimony, even if unrefuted). Therefore, the ALJ implicitly determined the claimant failed to sustain her initial burden to prove that her AWW is greater than $330. It follows that the burden of proof never shifted to the respondents and the ALJ did not err in denying the claim for additional permanent partial disability benefits. See Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).

II.
Similarly, the claimant contends the respondents failed to refute her entitlement to temporary disability benefits. We reject this argument.

To receive temporary disability benefits a claimant must prove the industrial injury caused a disability, that she left work for more than three days and she suffered an actual loss of wages. Section 8-42-103(1), C.R.S. 2002. The term disability refers to an inability to perform the preinjury employment. McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995).

The claimant testified that as a result of the industrial injury she missed 40 hours of work between October 7, 1998 and April 1999. However, the claimant did not present any corroborating evidence. Furthermore, in her answers to interrogatories the claimant stated she did not know of any evidence supporting her claim for temporary disability benefits. (Respondent’s hearing exhibits G, L).

With record support, the ALJ found the claimant returned to work the day after the injury, resigned in April 1999 to accept a better paying job and continued that job until she left in anticipation of the birth of her child. The ALJ’s also relied on evidence the claimant’s attorney in the third-party claim involving the industrial injury did not assert an claim for lost wages. It follows, the ALJ could, and did, reasonably infer that the claimant failed to prove she was temporarily disabled between October 1998 and April 1999.

However, the claimant contends the ALJ’s reliance on her attorney’s statements in the third-party action violates the principles of judicial admissions and collateral estoppel. We conclude these arguments were waived.

The Colorado Rules of Evidence require that before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. C.R.E. 103(a)(1); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Section 8-43-210, C.R.S. 2002, provides that the civil rules of evidence apply in workers’ compensation proceedings.

On cross-examination in the workers’ compensation claim, the claimant admitted that during her deposition in the third-party action, her attorney announced the claimant was not claiming any lost wages as a result of the motor vehicle accident. (Tr. p. 29). The claimant’s attorney did not object to this line of questioning in the workers’ compensation claim. Consequently, the claimant waived any objection to the ALJ’s consideration of this evidence.

We also reject the claimant’s contention the ALJ erroneously required her to prove she was disabled for more than three consecutive or full work shifts. The ALJ found the claimant’s testimony that she missed a total of 40 hours of work was not credible. The ALJ also found the claimant failed to prove she had a disability lasting more that three work shifts which we understand as his determination the claimant did not even prove she missed 24 hours of work based on an 8 hour workday. (Finding of Fact 19). Moreover, these findings support the denial of temporary disability benefits.

III.
Next, the claimant contends the ALJ erroneously failed to order the respondents to pay for Dr. Kleiner’s treatment. We perceive no error.

The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).

Section 8-43-404(5), C.R.S. 2002, affords the respondents the right, in the first instance, to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). However, the statute also provides that if the claimant makes a written request to the insurance carrier for permission to select the treating physician and “permission is neither granted nor refused within twenty days” of the request, the insurance carrier is deemed to have waived any objection to the request.

Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, supra; Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); see also Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985) (claimant “may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization” to select a treating physician).

Here it is undisputed that an associate of the claimant’s attorney wrote a letter to the insurer on June 27, 2001, which requested permission for the claimant to treat with Dr. Kleiner. No written objection was filed within 20 days.

The claimant argues that the respondents’ attorney authorized the insurer to engage in ex-parte communication with the claimant’s attorney. Therefore, the claimant contends her attorney’s failure to provide the respondents’ attorney with a copy of the June 27 letter did not preclude Dr. Kleiner from becoming an authorized treating physician by virtue of the respondents’ failure timely to deny permission to treat with Dr. Kleiner.

The Rules of Procedure Part XI(B)(3), 7 Code Colo Reg. 1101-3 at 39, provide that “[W]hen mailing or serving any documents or correspondence on a party, whether it is filed with the Division, a copy shall be mailed to the attorney(s) of record.”

The respondents’ attorney entered his appearance in the record in December 2000. Accordingly, we perceive no error in the ALJ’s determination that the failure to send a copy of the June 27, 2001 letter to respondents’ attorney violated rule XI(B)(3) and rendered the June 27 order legally insufficient to prove the respondents waived an objection to Dr. Kleiner’s treatment of the industrial injury. Therefore, the ALJ did not err in refusing to hold the insurer responsible for treatment by Dr. Kleiner. Cf. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986)

IV.
The claimant next contends the ALJ erred in failing to require the respondents to provide future treatment for her S1 joint dysfunction consistent with Dr. Kleiner’s recommendations. In so doing, the claimant concedes she reached MMI on June 5, 2000. However, she alleges a worsening of condition after MMI and requests additional medical benefits to treat the worsened condition. We perceive no reversible error.

An uncontested final admission closes a claim, and once closed, the claimant is precluded from receiving further benefits, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991); Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994).

In this case, the ALJ found the claimant filed a timely objection to the respondents’ Final Admission of Liability. Further, although the written objection did not dispute the fact the claimant was at MMI as of June 5, 2000 it did dispute the admission on all other issues. (See
Respondents’ hearing exhibit D). The claimant also endorsed the issue of medical benefits for hearing. Thus, we agree with the claimant that the issue of medical benefits was not “closed” and, therefore, the ALJ erred insofar as he determined the claimant was required to file a petition to reopen.

However, the respondents’ obligation to provide medical benefits to cure the industrial injury terminates at MMI. Thereafter the respondents are only responsible for medical benefits to maintain or prevent a deterioration of the claimant’s condition. Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). This is true because MMI is defined as the point in time when the claimant’s condition is “stable and no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. 2002. An exception exists where the claimant proves a worsening of condition after MMI. Furthermore, a claim for medical benefits designed to cure the injury is separate from the claimant’s entitlement to future medical benefits to maintain or prevent a deterioration of her condition. Indeed the respondents admitted liability for Grover-type medical benefits in the Final Admission of Liability.

The initial determination of MMI must be made by an authorized treating physician, and if that determination is disputed the disputing party must request an DIME. Section 8- 42-107(8)(b), C.R.S. 2002. In the absence of a DIME the ALJ lacks jurisdiction to adjudicate a request for additional medical benefits to cure the effects of the injury. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).

Dr. Kleiner’s testimony is subject to conflicting inferences. However, there is substantial evidence in his testimony to support the ALJ’s finding that Dr. Kleiner’s treatment recommendations were designed to “cure” the claimant’s S1 joint dysfunction. Therefore, the ALJ reasonably inferred that the claimant’s request for the treatment recommended by Dr. Kleiner was a constructive challenge to Dr. Aylor’s initial determination of MMI.

It is undisputed the claimant did not request a DIME. Consequently, the ALJ did not err in finding he lacked jurisdiction to consider the claimant’s request for additional medical benefits to attain MMI in the absence of an order reopening the claim on the issue of MMI.

Moreover, at hearing the claimant did not allege a worsening of condition from the industrial injury. Rather, as we understand the claimant’s argument, she alleged she is entitled to further medical benefits because the issue of medical benefits was “open.” (See Tr. pp. 16-18). Therefore, the record supports the ALJ’s determination that the issue of whether the claimant suffered a worsening of condition was not properly before him for adjudication. Consequently, the ALJ’s reference to the absence of a petition to reopen based on a worsening of condition is harmless error. Section 8-43-310 C.R.S. 2002; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded)

V.
The claimant also contends that the ALJ’s order reflects the ALJ resolved all evidentiary conflicts against the claimant as a sanction for her failure to comply with permitted discovery. The claimant argues this was error because there was no discovery violation. Alternatively, the claimant contends that insofar as her answers to the respondents’ interrogatories were insufficient, the respondents’ only recourse was to take her deposition. Further, the claimant argues the ALJ’s “applied presumption” was unfair and prejudicial to the claimant. We reject these arguments.

The respondents propounded interrogatories to the claimant. In response to many of the questions the claimant answered “I don’t know.” At hearing the respondents moved to strike the testimony of the claimant and Dr. Kleiner as a sanction for the claimant’s willful failure to comply with permitted discovery. The ALJ took the motion under advisement.

In his written order, the ALJ expressly found that the claimant’s conduct demonstrated a flagrant disregard of her discovery obligations. (Finding of Fact 15). However, the ALJ found the claimant complied with a prehearing order requiring her to disclose the terms of a third-party settlement. Further, the ALJ found there was no order compelling discovery on any other issue. Therefore, the ALJ denied the respondents’ motion to strike the testimony of the claimant and Dr. Kleiner. (Conclusions of Law A).

Moreover, we are unable to locate any language in the ALJ’s order which supports the claimant’s contention that the ALJ “applied a presumption” against the claimant. Therefore, we reject the claimant’s bald assertion of the same. See Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516
(Colo.App. 1985) (ALJ entitled to presumption of integrity, honesty, and impartiality). In view of our disposition we need not consider the claimant’s further arguments on this issue including her contention that the respondents wrongfully sought to require claimant’s counsel to respond to the interrogatories and, thus, make him a witness in the claim.

VI.
We also reject the claimant’s contention that the ALJ’s findings of fact and conclusions of law are. insufficient to support the order granting the $4,689.91 credit.

The provisions of § 8-41-203(1), C.R.S. 2002, grant a workers’ compensation insurer an “assignment” of a claim against a third-party tort-feasor to the extent of workers’ compensation benefits actually paid. The purpose of this statute is to adjust rights between workers’ compensation insurers and claimants “by requiring the insurer to be reimbursed out of the claimant’s recovery against a third-party tortfeasor for benefits it has paid, leaving the claimant with any excess.” Metcalfe v. Bruning Division of AMI, 868 P.2d 1145, 1148
(Colo.App. 1993). The statute also prevents the double recovery of workers’ compensation benefits and tort damages by claimants. See Jordan v. Fonken Stevens, P.C., 914 P.2d 394 (Colo.App. 1995).

Further, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624
(Colo.App. 1986). The claimant’s arguments notwithstanding, we have no difficulty ascertaining the basis for the ALJ’s order, and thus, the ALJ’s findings are sufficient to permit appellate review.

The respondents’ Final Admission of Liability admitted liability for medical benefits of $3,923.97 and permanent disability benefits of $11,968.54. The claimant does not dispute she received these workers’ compensation benefits. Neither does the claimant dispute that she received $4,689.91 in a third-party settlement involving the industrial injury. Accordingly, the record supports the ALJ’s determination that the respondents are entitled to a credit of $4,689.91.

VII.
Finally, we reject the claimant’s contention the ALJ erred by failing to impose penalties for the respondents’ violation of § 8-40-102(1), C.R.S. 2002.

Although the claimant did not identify the penalty statute she relied upon, we agree with the ALJ that the claimant implicitly sought an order imposing penalties under § 8-43- 304(1), C.R.S. 2002. That statute provides that an insurer who fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, may be subject to penalties of up to $500 per day. The imposition of penalties under § 8-43-304(1) requires a two-step analysis. The ALJ must first determine whether the disputed conduct constituted a violation of a procedural rule. Allison v. Industrial Claim Appeals Office, 916 P.2d 623
(Colo.App. 1995). If a rule was violated, the ALJ must determine whether the actions which resulted in the violation were objectively reasonable Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995).

At the commencement of the hearing, the claimant’s attorney stated that the claimant sought penalties for the respondents’ 1) failure to pay medical benefits in a timely fashion; 2) failure to authorize certain treating physicians and; 3) “failure to comply with statutes and rules governing designation of ATP [authorized treating physician].” (Tr. p. 5).

The ALJ rejected the claimant’s contention that the insurer’s failure to respond to the claimant’s June 27 letter automatically authorized treatment by Dr. Kleiner. Accordingly, the ALJ did not err in failing to find the respondents are subject to penalties for denying liability for Dr. Kleiner’s treatment.

The claimant testified that she wanted an order requiring the respondents to pay the medical bills in claimant’s exhibit 2. (Tr. p. 33). However, the claimant did not present any testimony or evidence in support of her contention that the bills were not timely paid. Under these circumstances, the record supports the ALJ’s determination that the record was legally insufficient for him to ascertain the basis for the penalty claim.

IT IS THEREFORE ORDERED that the ALJ’s order dated November 25, 2002, 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. 2002. 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 June 16, 2003 to the following parties:

Taunia Anderson-Capranelli, 4943 E. Apollo Bay Dr., Highlands Ranch, CO 80130

Republic Industries, Inc. d/b/a Chesrown Automotive, 7980 W. Tufts, Littleton, CO 80123

Michelle Clay, Liberty Mutual Insurance Co., P. O. Box 169208, Irving, TX 75016

Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)

Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents)

BY: A. Hurtado