W.C. No. 4-206-261Industrial Claim Appeals Office.
September 15, 1995
FINAL ORDER
The respondents seek review of an order of Chief Administrative Law Judge Felter (ALJ) dated November 17, 1994. The respondent also seeks review of a “Corrective Order” dated December 16, 1994. We modify the apportionment of penalties in the November 17 order, but otherwise affirm it. We also dismiss without prejudice the petition to review the Corrective Order.
In the November 17 order, the ALJ found that the claimant “experienced pain in her upper back and neck” on January 17, 1994, while lifting in the course and scope of her employment. The ALJ stated that the claimant continued to work despite remaining “symptomatic.” The ALJ further found that on January 31, 1994, the claimant experienced an increase in symptoms while shoveling snow at the employer’s premises.
The ALJ found that the claimant became temporarily and totally disabled on January 31, 1994. However, the ALJ also found that the claimant was not scheduled to work, and did not report her injury to the respondents until February 10, 1994.
Under these circumstances, the ALJ awarded temporary total disability benefits from January 31, 1994 through April 30, 1994. He also assessed a penalty, pursuant to § 8-43-203(2), C.R.S. (1995 Cum. Supp.), based upon the respondents’ failure to admit or deny liability until April 19, 1994. The ALJ stated that the penalty period should run from “March 2, 1994 through April 18, 1994 in total amount of $2,820.00; $2,175.00 of which is payable to the Claimant and $645.00 payable to the Subsequent Injury Fund.” Finally, the ALJ stated that the respondents are liable for “emergency care” which the claimant received at several hospitals. However, the ALJ stated that the “amount” of medical benefits “is to remain open for the taking of further evidence.”
Subsequent to the November 17 order, the claimant filed a “Motion for Corrective Order.” With this motion, the claimant submitted a written statement from a physician which contradicted a finding in the ALJ’s November 17 order. Specifically, the physician stated that the claimant was not “admitted for pneumonia” while receiving treatment at Porter Hospital. On December 15, 1994, the ALJ entered an order modifying the November 17 order by deleting the reference to treatment for pneumonia at Porter Hospital.
I.
On review, the respondents first contend that the ALJ failed to enter sufficient findings of fact concerning the date on which the claimant sustained an industrial injury. They argue that it cannot be ascertained whether the ALJ found an injury on January 17, 1994, January 31, 1994, or both. We perceive no error.
It is true that the ALJ’s written order contains some ambiguity concerning the date on which the claimant sustained the injury. However, in his oral remarks at the hearing, the ALJ explicitly found that the claimant sustained an injury on January 17, and merely exacerbated her symptoms on January 31. The ALJ also stated that the January 31 incident did not constitute a “brand new compensable event.” (Tr. p. 80). Thus, the ALJ’s oral findings clarify the written order, and we find no deficiency with respect to the date of the injury. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, 789 P.2d 269 (Colo. 1989) (proper to consider oral findings to clarify written findings).
Insofar as the respondents contend that the record lacks substantial evidence to support the ALJ’s finding of a January 17 injury, we disagree. Substantial evidence is probative evidence which supports a finding without regard to contradictory testimony or inferences. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Here, the claimant’s testimony permits the inference that her injury was sustained on January 17, and that the January 31 snow shoveling incident merely elicited symptoms. Further, the claimant’s testimony was corroborated by a medical record dated January 17, 1994, which states that the claimant gave a history of injuring her back while helping support a patient. The fact that the evidence might have supported contrary findings and conclusions is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The respondents next contend that the ALJ erred in “both the period and amount of penalties assessed against respondent.” In support of this position, the respondents point out that the ALJ stated in his oral remarks that “March 8, 1994, was the twenty-sixth day after respondents or their authorized agent had twenty-five within which to admit or contest.” We modify the ALJ’s order.
Initially, with respect to the period for which a penalty was imposed, we find no error in the ALJ’s written order. The applicable statute, §8-43-203(1), provides that respondents are obliged to admit or deny liability “within twenty days after notice or knowledge of an injury . . . which disables [the claimant] for more than three shifts or three calendar days.” (Emphasis added).
Here, the ALJ found that the respondents were notified of the injury on February 10, 1994. Therefore, the respondents had until and including March 2, 1994, to admit or deny liability. Hence, the ALJ properly assessed a penalty for the period of March 3, 1994 to April 18, 1994, inclusive.
It is true that the ALJ’s written order differs from his oral comments concerning the penalty period. However, insofar as this difference exists, it is the ALJ’s written order, not his oral remarks which are subject to review. See Wait v. Jan’s Malt Shoppe, 736 P.2d 1265 (Colo.App. 1987) Neoplan USA Corp. v. Industrial Commission, 721 P.2d 157 (Colo.App. 1986).
However, we do agree with the respondents that the ALJ erred in determining the “amount of penalties due either to the claimant or the Subsequent Injury Fund.” Specifically, § 8-42-203 [8-43-203](2) provides that “fifty percent of any penalty paid pursuant to this subsection (2) shall be paid to the Subsequent Injury Fund . . . and fifty percent to the claimant.” (Emphasis added). Therefore, the claimant should receive $1,410, and the Subsequent Injury Fund should receive $1,410.
III.
The respondents next contend that the ALJ erred in ordering them to pay for “emergency” medical treatment which the claimant received at several hospitals. They further contend that the ALJ erred in permitting the claimant to submit the physician’s written statement subsequent to the November 17 order, and in considering the statement in connection with the “Corrective Order.”
Pursuant to § 8-43-301(2), C.R.S. (1995 Cum. Supp.), it is not proper for us to consider an ALJ’s order unless it awards or denies benefits, or awards or denies a penalty. See Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Further, an ALJ’s order may be final and reviewable with respect to one issue, but not final and reviewable with respect to another. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Here, the ALJ’s November 17 order, insofar as it pertains to medical benefits, explicitly states that the “amount” of benefits “is to remain open for the taking of further evidence.” The Corrective Order does not change this fact. Thus, neither the November 17 order, nor the Corrective Order, is final with respect to the issue of medical benefits. Instead, the ALJ anticipates the taking of additional evidence for the purpose of determining the precise amount of benefits to be awarded. Under these circumstances, neither order is currently reviewable with respect to the issue of medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 17, 1994, is modified to reflect that the respondents shall pay a penalty of $1,410 to the claimant, and shall pay a penalty of $1,410 to the Subsequent Injury Fund.
IT IS FURTHER ORDERED that the ALJ’s November 17 order is otherwise affirmed.
IT IS FURTHER ORDERED that, with respect to the issue of medical benefits, the respondents’ petitions to review the order of November 17, 1994, and the Corrective Order, are dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 15, 1995 to the following parties:
Catherine E. Atkins, 31293 Evans View Lane, Pine, CO 80470
John and Violet Brown, 640 Marion St., Denver, CO 80218
Lance Cassino, P.O. Box 1050, Denver, CO 80218
Richard T. Goold, Esq., 1017 S. Gaylord St., Denver, CO 80209 (For the Claimant)
Michael W. Sutherland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
By: ___________________________