W.C. No. 4-593-027.Industrial Claim Appeals Office.
September 29, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied a request for penalties against the respondent, J. Douglas Bradley, MD. (Dr. Bradley). We affirm.
Claimant suffered an admitted injury to his right wrist on September 5, 2003. Dr. Bradley became the authorized treating physician. On August 6, 2004 Dr. Bradley placed the claimant at maximum medical improvement (MMI) but did not make a determination of permanent impairment.
On November 19, 2004 claimant filed an application for hearing on the issue of penalties against Dr. Bradley for violation of the Rules of Procedure, Part IV(N)(4)(a)(2), 7 Code Colo. Reg. 1101-3, which requires an authorized treating physician to make a determination of permanent impairment within 20 days of MMI. On December 7, 2004 an insurance adjuster sent an e-mail to Dr. Bradley indicating that the claimant was seeking penalties for the delay in completing a permanent impairment rating. Dr. Bradley immediately prepared a report dated December 8, 2004 indicating that claimant suffered no permanent medical impairment due to the work injury.
At the hearing on the claim for penalties, Dr. Bradley testified he was confused about how he should determine claimant’s impairment rating because he had medical evidence of invalid grip strength measurements, inconsistent range of motion measurements, no neurological impairment, and no impairment due to a specific surgery. Further, Dr. Bradley stated he did not have in place any calendaring system for assuring determination of impairment ratings within 20 days after MMI. Consequently, Dr. Bradley stated the claimant’s case “fell through the cracks” (Tr. 110).
The ALJ found Dr. Bradley knew the requirements of Rule IV(N)(4)(a)(2) and that Dr. Bradley had no reasonable basis for his failure to provide an impairment rating to claimant within 20 days after determining MMI. However the ALJ further found that Dr. Bradley cured the violation on December 8, 2004 which was within 20 days of the filing of the claimant’s November 19, 2004 application for hearing on the issue of penalties. Therefore, the ALJ required the claimant to prove by “clear and convincing evidence” that Dr. Bradley “knew or reasonably should have known” he was in violation of Rule IV(N)(4)(a)(2), as required by §8-43-304(4), C.R.S. 2005.
The ALJ found that Dr. Bradley put the claimant’s file aside, forgot about it and no clear and convincing evidence demonstrated that he knew all along that he had failed to produce an impairment rating. The ALJ also found Dr. Bradley did not know the facts about his own negligence and the evidence failed to indicate that he had any reasonable basis to know before November 19, 2004 that he had failed to produce an impairment rating in the claimant’s case. Therefore, the ALJ denied the request for penalties.
I.
On review, the claimant contends the ALJ erred in finding the claimant failed to sustain his burden of proof under § 8-43-304(4). We are not persuaded.
Section 8-43-304(4) provides as follows:
In an application for hearing for any penalty pursuant to subsection (1) of this section, the applicant shall state with specificity the grounds on which the penalty is being asserted. After the date of mailing of such an application, an alleged violator shall have twenty days to cure the violation. If the violator cures the violation within such twenty-day period, and the party seeking such a penalty fails to prove by clear and convincing evidence that the alleged violator knew or reasonably should have known such person was in violation, no penalty shall be assessed. (Emphasis added).
Accordingly, no penalty may be imposed if the violation is cured within 20 days and the claimant failed to prove the violator knew or should have know of the violation.
Clear and convincing evidence is stronger than preponderance, and is such evidence that makes a proposition highly probable and free from serious doubt DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980) Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Consequently, to sustain his burden of proof the claimant was required to establish that it was “highly probable” or free from serious doubt that Dr. Bradley knew or should have known that he was in violation of the rule.
Whether Dr. Bradley’s’ knew or should have know of the violation, are questions of fact for resolution by the ALJ. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, supra. Therefore, we must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2005; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001) ; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141
(Colo.App. 1998).
Notwithstanding the claimant’s arguments, the ALJ could reasonably infer from the testimony of Dr. Bradley that the evidence was insufficient to find it was “highly probable” or “free from serious doubt” that Dr. Bradley knew or should have known before November 19, 2004 that he had failed to produce an impairment rating. Furthermore, we may not substitute our judgment for that of the ALJ concerning the sufficiency or probative weight of the testimony presented in the case and decline the claimant’s initiation to do so. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Co. App. 1985).
Nevertheless, the claimant argues that there is presumption in claimant’s favor that “people who work within the workers’ compensation system such as Dr. Bradley are presumed to know the Rules”. Claimant further argues it was incumbent upon Dr. Bradley to come forth with evidence to demonstrate that he was in compliance with the Rule. Claimant cites our conclusions in Rogan v. UPS, WC# 4-314-848 (March 2, 1999) for the proposition that parties to a workers compensation claim are presumed to know the applicable law. We agree with claimant that such a presumption exists. 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). We further note that this presumption aids a party in meeting its burden of proof Union Ins. Co. v. RCA Corp., 724 P.2d 80 (Colo.App. 1986).
However in Rogan the respondents did not present any factual argument that their actions did not violate the rule and the record compelled the conclusion that the respondents knew or should have known that their actions violated the rule. In contrast, Dr. Bradley’s testimony establishes a basis on which the ALJ could find, as he did, that although Dr. Bradley was not ignorant of the law he was ignorant of the fact of his omission to provide an impairment rating until November 19, 2004. Furthermore, this finding supports the conclusion the claimant failed to sustain his burden of proof for the imposition of penalties prior to November 19, 2004.
II.
Claimant further argues that the impairment rating of Dr. Bradley was not properly submitted under Section 8-43-404(2) because claimant was not mailed a copy of the report at the time Dr. Bradley mailed it to the employer. Thus, the claimant argues the violation was not “cured”. However, the claimant did not raise this specific argument before the ALJ and it was only raised here in claimant’s Brief in Support of Petition to Review. Therefore, we shall not consider the argument for the first time on appeal. Lewis V. Scientific Supply Co., 897 P.2d 905 (Colo. App. 1995); City of Boulder v. Dinsmore 902 P.2d 925 (Colo. App. 1995): Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171
(Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 11, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Tom Schrant
Chris Ashmore, Pueblo, CO, Nu Horizon, Pueblo, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Dr. J. Douglas Bradley, Pueblo, CO, Subsequent Injury Fund, Division of Workers’ Compensation — Legal Department, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Thomas M. Stern, Esq., Denver, CO, (For Respondents.
Nu Horizon and Pinnacol Assurance), John R. Mann, Esq., Barbara H. Glogiewicz, Esq. and John H., Kechriotis, Esq., Denver, CO, (For Respondent Dr. Bradley).