W.C. No. 4-632-376.Industrial Claim Appeals Office.
April 7, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ Walsh) dated September 2, 2009, that determined the claimant had reached and remained at maximum medical improvement (MMI), denied the claimant’s request for medical benefits to address his low back, left shoulder and cervical conditions, found the claimant’s pain medications were not reasonable or necessary and denied the claimant’s request for penalties. We affirm.
The claimant worked for the employer by locating and apprehending people who had violated the terms of their bail agreements. On October 20, 2004, the claimant injured his left shoulder in a struggle attempting to apprehend a person who had violated the terms of his bail. (W.C. No. 4-632-376). On October 27, 2004, the claimant injured his right arm apprehending another person who had violated the terms of her bail. (W.C. No. 4-634-777). On November 2, 2004, the claimant was restraining another person when he injured his right arm. (W.C. No. 4-654-877). All the claims appear to be against the same employer. ALJ Walsh has identified only the claim identified as W.C. No. 4-632-376 in the caption of his order and we have followed that convention.
A hearing was originally held before ALJ Mattoon in 2005. Exhibit 1. ALJ Mattoon found the claimant suffered compensable injuries to his left knee, left shoulder and neck in the October 20, 2004 incident. ALJ Mattoon found the claimant suffered a compensable injury to his right shoulder in the October 27, 2004 incident. ALJ Mattoon found the claimant suffered a compensable aggravation to his right shoulder in the November 2, 2004 incident. ALJ Mattoon ordered the respondents to provide reasonable necessary and related medical benefits. ALJ Mattoon’s order did not find or order that
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the claimant’s low back or lumbar spine conditions were causally related to the compensable industrial injuries. In her order, ALJ Mattoon did not mention low back problems.
ALJ Walsh found that the claimant had significant and ongoing back pain before the October 20, 2004 industrial injury. ALJ Walsh also found the claimant had a significant history of previous neck pain and headaches for years before his industrial injuries. The claimant was evaluated by Dr. Sung in 2006. Dr. Sung diagnosed the claimant as having a herniated disc in his neck and recommended a C6-7 cervical surgery.
In 2007, the claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician felt the claimant was not an appropriate surgical candidate for any operation of the cervical spine because of the claimant’s obesity, paucity of objective findings, and lack of response to any treatment. The DIME physician placed the claimant at MMI. ALJ Walsh found that the claimant had not overcome the opinions and conclusions of the DIME physician by clear and convincing evidence. ALJ Walsh found the claimant reached MMI on June 6, 2007.
Dr. Roth opined that the claimant’s cervical spine pathology were not causally related to the claimant’s industrial injuries. ALJ Walsh, persuaded in part by the opinions of Dr. Roth, found that the claimant’s current neck and cervical spine condition and need for treatment were not causally related to the claimant’s industrial injuries. ALJ Walsh found that the surgery recommended by Dr. Sung was not reasonable, necessary, or related to the claimant’s industrial injuries.
The claimant alleged that the DIME physician injured his shoulder during the examination, which resulted in a rotator cuff tear. The DIME physician testified that he did not manipulate the claimant’s shoulder in a way that would cause it to pop or cause complaints of injury or increased symptoms. Dr. Roth testified that the claimant’s current left shoulder pathology was not causally related to the industrial injuries. Dr. Roth testified that the evidence would not support a claim that the claimant was assaulted or injured by the DIME physician during the examination. ALJ Walsh found that the DIME physician did not injure the claimant’s left shoulder in the DIME exam as alleged by the claimant.
Dr. Setty was unable to state definitively that the claimant’s lumbar spine condition was causally related to the claimant’s industrial injuries. Dr. Setty opined that the claimant’s low back symptoms were related to the claimant’s weight. Dr. Roth testified that the claimant’s lumbar spine condition was not related to the claimant’s injuries. The DIME physician stated that the claimant’s low back condition was not
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related to the claimant’s injuries. ALJ Walsh found that the claimant had not proven that his low back and lumbar spine conditions first complained of and documented many months after his industrial injures were causally related to those claims.
Dr. Roth testified that the claimant’s current pain medications were not reasonable and not necessary. ALJ Walsh found the opinions and testimony of Dr. Roth to be credible and persuasive.
The claimant sought penalties against the respondents pursuant to § 8-43-304(1) C.R.S. The claimant alleged the claims representative sent letters to five different providers in October 2008 stating that the claimant’s claim was denied and the medical bills would not be paid. The claimant representative testified that she had mistakenly issued those letters and that once she was notified that the letters had been issued she took steps to readdress the medical bills submitted by the providers in question. ALJ Walsh found that the claimant had not shown that his medical care was impacted or delayed as a result of the denial letters. ALJ Walsh found that the respondents did not violate any rule, statute or order by mistakenly issuing these denial letters and that the claimant had not presented evidence that the respondents should be penalized for any act or omission.
ALJ Walsh found the claimant had not overcome the DIME physician’s opinion that the claimant had reached MMI on June 6, 2007. ALJ Walsh dismissed the claimant’s requests for medical benefits to address his low back, left shoulder and cervical spine conditions. ALJ Walsh found the proposed cervical spine surgery by Dr. Sung was not reasonable or necessary. The claimant’s pain medications were found to be not reasonable or necessary and ALJ Walsh relieved the respondents from all responsibility to provide those medications to the claimant. ALJ Walsh denied and dismissed the claimant’s request for penalties against the respondents.
I. (Low Back)
The claimant contends the ALJ failed to evaluate properly the medical evidence and that inferences drawn by the ALJ were not plausible. The claimant contends the ALJ made credibility determinations, which were neither consistent nor legally supportable. As we read the claimant brief, he contends there was not substantial evidence in the record to support ALJ Walsh’s that the claimant had not carried his burden of proof to show his present low back condition was causally related to his industrial injury.
We first note that ALJ Walsh found the claimant had not overcome the opinion of the DIME physician that the claimant’s lumbar spine and low back were not causally related to the claimant’s industrial injuries. We do not understand the claimant to contest this finding. In any event, there is record support for this finding. Lindenbaum Depo. at 48-49.
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At the hearing before ALJ Walsh the issues included whether the claimant had overcome by clear and convincing evidence the DIME physician’s opinion on whether the claimant had reached MMI for his industrial injuries and the DIME physician’s opinion concerning the claimant’s impairment. In the claimant’s challenge to both MMI and the impairment rating, the DIME physician’s opinion on the relatedness of a particular component of a claimant’s overall impairment carries presumptive effect. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998)
We do not read the claimant’s brief as contesting ALJ Walsh’s identification of the issues or the relevant law on the presumptive effect of the DIME physician’s opinions on the relatedness of the claimant’s back condition. In our view, the ALJ’s determination that the claimant did not carry his burden of proof to show his present low back condition was causally related to his industrial injury is consistent with the opinions of the DIME physician and consistent with the relevant law. Therefore, we are not persuaded to interfere with the ALJ’s determination that claimant’s lumbar spine and low back were not causally related to the claimant’s industrial injuries. Nevertheless, we address the claimant’s argument, which we understand as essentially contending that ALJ Walsh erred in finding the opinions of Dr. Roth were credible on the issue of the claimant’s low back.
We first note that in reaching his decision ALJ Walsh did not rely exclusively on the opinions of Dr. Roth, but also the opinion of Dr. Lesnak and the DIME physician that the claimant’s lumbar condition was not related to the industrial claims. In addition, ALJ Walsh found that the claimant first complained of low back problems many months after his industrial injuries. ALJ Walsh was persuaded that based on his testimony at the hearing the claimant was not one to forget medical conditions or to forgo voicing his complaints. ALJ Walsh concluded that had the claimant injured his lumbar spine he would have complained of those symptoms in the days, weeks and months after his industrial injuries. ALJ Walsh found compelling the evidence that the claimant did not discuss his back condition with Dr. Ridings, Dr. Weinstein and Dr. Setty.
The claimant contends ALJ Walsh erred in finding that when Dr. Roth gave his opinions he had the benefit reviewing all of the claimant’s medical records. The claimant cites Dr. Roth’s testimony that he did not have 100 percent of the medical records. Tr. (5-29-09) at 261-62. The claimant argues that Dr. Roth’s opinions were mistakenly found by ALJ Walsh to be persuasive and convincing because of ALJ Walsh’s erroneous conclusion that Dr. Roth had his reviewed all of the medical records.
It does not appear that the claimant disputes that Dr. Roth testified that the claimant’s lumbar spine condition was not related to his industrial injuries. In any event,
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there is record support for ALJ Walsh’s reliance on Dr. Roth’s testimony. Tr. (5-29-09) at 225-30; Tr. (6-23-09) at 26-30. Further, although Dr. Roth testified that he did not have 100 percent of the medical records he also indicated that he did not need to see any more. Tr. (5-29-09) 262. Nor has the claimant suggested that any significant portion of the medical record was not presented to Dr. Roth. Under these circumstances, any error regarding whether Dr. Roth had all of the medical record was harmless and will be disregarded. See § 8-43-310 C.R.S ; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo. App. 1988).
We note that ALJ Walsh contrasted the medical record available to Dr. Roth to the medical records available to other physicians such as Dr. Setty. The claimant contends that ALJ Walsh erred in dismissing the opinions of Dr. Setty as unpersuasive because Dr. Setty did not have access to, or knowledge of, the entire medical record. The claimant contends that Dr. Setty was the claimant’s treating physician and therefore would have such knowledge. However, we note that Dr. Setty testified that in giving opinions on causation it was important to have a full history from the patient and she agreed she only had about one-third of the claimant’s medical record relevant to his industrial injury. Setty Depo. at 28. Dr. Setty’s opinions were also found unpersuasive by the ALJ because she was unable to definitively state that the claimant’s lumbar spine condition was causally related to the claimant’s industrial injuries and told the parties to voice their question on this issue with the surgeons and specialists. It must be remembered that the claimant had the burden of proof and relied upon Dr. Setty’s opinions. We also note that although not pertaining to the low back condition Dr. Sung, in testifying regarding the claimant’s neck, stated that if the claimant had previous neck pathologies it would be significant to him in assessing a causal link, but he did not have those records. Sung Depo. at 32.
The claimant also argues that it was not until after his October 2004 industrial knee injury causing his gait to be altered that his low back pain was again rendered symptomatic. Dr. Roth did not credit the claimant’s theory that he had an altered gait, which led to his low back becoming symptomatic. Tr. (5-29-09) at 228.
In our view, opinions of Dr. Roth, the DIME physician, Dr. Lesnak and the other factual determinations made by the ALJ concerning the timing of the back claim constitute substantial evidence supporting ALJ Walsh’s determination that the claimant’s cervical spine condition and need for treatment were not causally related to the claimant’s industrial injuries. Therefore, we are bound by such determination. Section 8-43-301 (8), C.R.S.
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II. (Cervical Spine)
The claimant next argues that ALJ Walsh erred in determining that his current cervical spine problems were not causally related to his industrial injuries. The claimant argues that Dr. Roth erred in his opinion that the claimant’s industrial injuries did not cause the need for cervical spine surgery because he thought the claimant never suffered an injury to his neck. The claimant argues that Dr. Setty reported the claimant’s neck symptomalogy on the same date the claimant was injured and that the DIME physician gave the claimant an impairment rating to the neck. The claimant also argues that ALJ Mattoon found that the claimant had injured his neck. We are not persuaded that ALJ Walsh committed reversible error.
We first note that the issue identified in the order related to the cervical spine was whether the claimant had shown by a preponderance of the evidence that he was entitled to additional medical benefits for any cervical spine condition causally related to the claim. The issue addressed by the ALJ was not whether the claimant had suffered an industrial injury to his neck at some point, but rather the issue was whether the claimant established that his current need for the cervical spine surgery proposed by Dr. Sung was reasonable and necessary. ALJ Walsh determined that the claimant had failed in this burden. We are not persuaded that ALJ Walsh’s order is in conflict with ALJ Mattoon’s order.
Therefore, the essential issue is not whether the claimant originally had some kind of injury to his neck as a result of an industrial accident. Rather the issue is whether ALJ Walsh erred in concluding that the cervical spine surgery was not reasonable and necessary. We are not persuaded that ALJ Walsh committed reversible error.
The respondent is liable for medical treatment that is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The question of whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002) Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). The claimant bears the burden of proof to establish the right to specific medical benefits. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995). In our view, the denial of the request for cervical surgery made by ALJ Walsh is based upon substantial evidence in the record.
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The claimant argues that Dr. Sung, Dr. Setty, Dr. Benecke and Dr. Hall all agreed that the claimant needed surgery. The claimant contends that at a minimum he should be allowed the benefit of a nerve block as recommended by Dr. Sung, Dr. Roth and the DIME physician.
ALJ Walsh found that Dr. Roth credibly explained that the claimant’s current neck and cervical spine condition is related to degenerative conditions not causally related to the industrial injuries, and would have required the same treatment, at the same time, had the claimant’s injuries not occurred in these claims. According to Dr. Roth, the claimant’s current neck and cervical spine condition is the same type, flows from the same diagnosis, and at the same levels of the cervical spine where the claimant had cervical spine degenerative disc disease and pathologies requiring medical treatment, hospital visits, and pain medications since the claimant had an unrelated neck injury in 1993.
Beyond the opinions of Dr. Roth in support of the ALJ Walsh’s determination, the claimant acknowledges that the DIME physician opined that the claimant did not need neck surgery. Dr. Lesnak also advised against the surgery. Exhibit C at 176.
In addition, ALJ Walsh found that both Dr. Roth and Dr. Lesnak credibly explained that the claimant did not seek treatment for any neck condition in the months after his injuries occurred. Tr. (5-29-09) at 218-19. The claimant did not allege his neck was injured or symptomatic when he saw Dr. Hall and Dr. Weinstein for evaluation and treatment in 2004 and 2005.
On the issue of the impairment rating provided by the DIME physician, ALJ Walsh found that the claimant had failed to overcome that determination by clear and convincing evidence. The claimant does not appear to be challenging the DIME physician’s impairment rating. Rather, the claimant in his post hearing position statement argued that although the DIME physician had opined that the claimant did not need neck surgery, his opinion was not entitled to any special weight on the need for subsequent Grover-type medical treatment, which in this case was the proposed surgery. On appeal, the specific relevant opinion from the DIME physician on the contested issue before ALJ Walsh was whether the claimant needed surgery on his neck and the DIME physician stated that he did not. Because we conclude that there is such ample evidence supporting the ALJ’s determination to deny the proposed surgery we need not reach the issue of the effect of the DIME physician’s opinion that the claimant had reached MMI on whether the claimant would be entitled to cervical surgery as a type of Grover medical benefit.
In any event, in our view, there was substantial evidence in support of the ALJ’s denial of the cervical surgery. Therefore, we may not interfere with the order. Section 8-43-301 (8), C.R.S.
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III. (Left Shoulder)
The claimant argues that ALJ Walsh erred in his determination of the lack of causal connection between the claimant’s left shoulder condition and his industrial injuries. The claimant argues that his left shoulder condition and need for surgery was caused when his rotator cuff was torn during his DIME. Thus, the claimant contends that his left shoulder condition and need for surgery is causally related to his October 2004 industrial injury. We are not persuaded to interfere with the ALJ’s determination on the connection between the claimant’s left shoulder condition and his industrial injury.
The question of whether the claimant has proven a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra.
On the issue of whether the DIME physician injured the claimant’s shoulder during the examination the ALJ made the following findings of fact with record support. The DIME physician testified that he did not manipulate the claimant’s shoulder in a way that resulted in a pop or any complaints of injury or increased symptoms. Lindenbaum Depo. 30-32. Dr. Roth testified that the claimant’s current left shoulder pathology was not causally related to the industrial injuries. Tr. (5-29-09) at 242. Dr. Roth testified that the evidence would not support a claim that the claimant was assaulted or injured by the DIME physician during the examination. Tr. (5-29-09) at 240-41. ALJ Walsh found that the DIME physician did not injure the claimant’s left shoulder as alleged by the claimant in the DIME exam.
In our view, there is substantial evidence in the record supporting the ALJ’s determination regarding the lack of a causal connection between the claimant’s left shoulder condition and his industrial injury. Therefore, we are bound by such determination. Section 8-43-301 (8), C.R.S.
IV. (Pain Medication)
The claimant argues that ALJ Walsh erred in his conclusion that pain medication is not reasonable or necessary. The claimant first argues that ALJ Walsh erred in his determinations of the causal relatedness of the claimant’s present condition to his
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industrial injuries. As we noted above we disagree with the claimant’s arguments that ALJ Walsh erred in his determinations on causation. The claimant next argues that ALJ Walsh reached his conclusion on the need for pain medication based upon Dr. Roth’s testimony, which was incredible as a matter of law.
Again, the question of whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, supra. The claimant bears the burden of proof to establish the right to specific medical benefits HLJ Management Group, Inc. v. Kim, supra. We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. In our view, the determinations made by ALJ Walsh on the claimant’s request for payment of pain medication is based upon substantial evidence in the record.
We first note that ALJ Walsh did not rely solely upon the opinions of Dr. Roth. ALJ Walsh also relied upon the opinions of Dr. Lesnak and the DIME physician in determining that the claimant’s present use of medications was not reasonable or necessary. Dr. Lesnak opined that given the lack of significant objective findings, the extremely high dose of narcotics in combination with daily benzodiazepines did not appear the treatment of choice. Dr. Lesnak strongly recommended that the claimant be weaned from his narcotic medications. Exhibit C at 177. The DIME physician expressed concern about the claimant’s intake of high doses of narcotics. Lindenbaum Depo. at 44.
Dr. Roth testified that the claimant’s pain mediation, including oral morphine, Dilaudid, Fentanyl patch and Valium, were not reasonable or necessary. Tr. (5-29-09) at 242-44. ALJ Walsh found Dr. Roth’s opinions to be persuasive. The claimant contends that Dr. Roth’s opinions were not credible.
We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997). We perceive no basis upon which to interfere with ALJ Walsh’s determination to credit the opinions of Dr. Roth.
V. (Weight-Diabetic)
The claimant next argues that ALJ Walsh was improperly influenced by the claimant’s weight and diabetic condition. The claimant requests that the entire order be reversed and the matter remanded to a different ALJ because it cannot be readily determined if or to what extent ALJ Walsh’s discussion of the claimant’s weight and diabetes might have influenced his determinations.
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It is not clear to us what the claimant means in his allegation that ALJ Walsh was improperly influenced. To the extent that the claimant argues that ALJ Walsh was biased or prejudged the case we are unpersuaded that this occurred. In his petition to review and brief in support, the claimant has cited no evidence that the ALJ had prejudged any issue relevant to the resolution of this claim See Nesbit v. Industrial Commission, 43 Colo. App. 398, 607 P.2d 1024 (1979) (substantial showing of bias necessary to support conclusion that hearing was unfair); In Re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (Colo. App. 1977) (adverse ruling alone does not support conclusion that hearing officer biased). It follows that the claimant made no showing of facts to overcome the presumption of competency, and fairness, which resides with the ALJ Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo. App. 1995).
ALJ Walsh in denying the claimant’s request for surgery did take note that the claimant’s obesity contributed to the lack of any reasonable expectation that the claimant’s condition would improve with surgery. However, this is a factual observation relevant to an issue in dispute and supported by the testimony of the DIME physician. Lindenbaum Depo. at 45. In our view, such observation by ALJ Walsh reveals no improper influence.
There were questions of the causal connection between the claimant’s industrial accidents and certain physical conditions the claimant had. Dr. Setty testified that the claimant’s 350-plus pound weight did affect his low back symptoms. Setty Depo at 20, 36. Dr. Setty was unable to differentiate between the pain the claimant was experiencing when she examined him and the pain he experienced before the industrial injury. Setty Depo. at 20. The DIME physician testified that although the claimant’s diabetes was not the predominant cause of the claimant’s neuropathy, it surely was a part of the problem. Lindenbaum Depo. at 52.
In our view, ALJ Walsh’s findings regarding of the claimant’s weight or diabetes were relevant to disputed issues and did not evidence any prejudice. We are not persuaded to remand the matter to a different ALJ.
VI (Penalties)
The claimant finally argues that ALJ Walsh erred in denying his request for imposition of penalties against the respondents. We are again not persuaded that ALJ Walsh committed any reversible error.
ALJ Walsh made the following findings regarding the issue of penalties. The claimant did not specify or plead any specific rule, statute, or order that the respondents violated that would form the basis for a penalty. Rather the claimant only pled, in his hearing application, the general penalty provision contained in § 8-43-304(1). There was
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no order directing respondents to pay the medical bills or benefits addressed by the letters sent by the claims representatives to medical providers. The respondents were free to address specific medical bills and requests for payment, and were not bound to pay for or admit to medical benefits simply because an award for general medical benefits existed. The respondents were never ordered to pay for these specific benefits. The claimant did not claim the respondents violated any provisions of the Workers’ Compensation Act or the Workers’ Compensation Rules of Procedure. ALJ Walsh concluded that no penalties should be imposed without failure to comply with an order, or the specific violation of a statute or rule.
The claimant does not challenge these findings directly; rather, the claimant argues that he specifically endorsed the issue of penalties in his application for hearing. The claimant contends that the respondents violated § 8-43-304(1) by sending letters to medical providers indicating that the claimant’s claim was denied when in fact ALJ Mattoon had found injuries to his left knee, cervical spine, and bilateral shoulders were compensable and the respondents had filed admissions of liability.
Whether statutory penalties may be imposed under § 8-43-304(1), C.R.S. involves a two-step process. That section provides for the imposition of penalties of up to $500 per day where the party:
violates any provision of articles 40 to 47 of [title 8], or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel. . . .
Therefore, the ALJ must first determine that the insurer’s conduct constituted a violation of the Workers’ Compensation Act, a rule, or an order. However, the conduct constituting the violation must also have been objectively unreasonable. Therefore, if the ALJ finds that a violation occurred, penalties may only be imposed if the ALJ concludes that the claimant’s conduct was not reasonable under an objective standard. See, e.g., Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo. App. 1995). The reasonableness of the claimant’s actions depends on whether they were predicated on a rational argument based in law or fact. Jiminez v. Industrial Claim Appeals Office, 107 P.3d 965 (Colo. App. 2003).
In reviewing the ALJ’s order refusing to impose penalties, we are bound by his factual findings if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997).
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Section 8-43-304(4), C.R.S. provides that an application for hearing on penalties shall state with specificity the grounds on which the penalty is being asserted. The imposition of penalties under § 8-43-304(1) requires an initial determination that a party has violated the Act in some manner, or failed to carry out a lawfully enjoined action, or violated an order. If no violation is found, penalties may not be imposed pursuant to § 8-43-304. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo. App. 1995).
Here, we do not understand the essential issue to be merely that the claimant did not plead a violation of any specific rule, statute or order that the respondents violated that would form the basis of any penalty. Rather, the claimant failed at the hearing to demonstrate the violation of a specific rule, statute or order.
We note that in the claimant’s position statement filed after the hearing he failed to identify any rule, statute or order the respondents were alleged to have violated. In his position statement the claimant merely identifies the general penalty provision contained in § 8-43-304.
ALJ Walsh specifically found that there was no order directing the respondents to pay medical bills or benefits addressed by the letters sent by the claims representative. The ALJ found that the respondents were free to address specific medical bills and request for payment, and were not bound to pay for or admit to medical benefits simply because an award for general medical benefits existed in the claim. The ALJ concluded that the claimant had failed to demonstrate that the respondents have violated any order, rule or statute by sending the letters.
We agree with ALJ Walsh that the order entered by ALJ Mattoon was merely an order for the respondents to pay the claimant reasonable, necessary and related medical benefits pursuant to the fee schedule. There was no order for specific medical treatment. Where an ALJ enters a general award of medical benefits, the respondents are not subject to penalties for refusing to comply with the award based on a good faith exercise their right to contest the reasonableness/relatedness of treatment and require the claimant to prove his entitlement to the treatment. Industrial Commission v. Continental Investment Co., 85 Colo. 475, 277 P. 303 (1929) BCW Enterprises v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997).
Here, the claimant only identified the general penalty statute under § 8-43-304. We are aware that it is provided in § 8-43-401 C.R.S. that a penalty may be imposed for delay in payment of medical benefits for more than thirty days. See Miller v. Industrial Claim Appeals Office, 49 P.3d 334 (Colo. App. 2001). However, this statute was not pled. In addition, the Division’s Rules of Procedure provide for payment of medical bills
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within a specific time limit. However, the rules or procedure were not pled or cited by the claimant before ALJ Walsh.
To the extent the claimant now relies on appeal on the provision of W.C. Rule of Procedure 16, 7 Code Colo. Reg. 1101-3 that argument was not raised by the claimant before ALJ Walsh. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994).
We perceive no error in the ALJ’s determination that the claimant had failed to demonstrate that the respondents had violated any provisions of the Workers’ Compensation Act or the Workers’ Compensation Rules of Procedure or the provisions of an order. We have considered the claimant’s other contentions, but conclude that they present us with no grounds upon which the order of the ALJ may be set aside.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 2, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John/D. Baird
______________________________ Thomas Schrant
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EVERETT YOUNG, P O BOX 38461, COLORADO SPRINGS, CO, (Claimant).
BOBBY BROWN BAIL BONDS, INC., Attn: BOBBY BROWN, MONUMENT, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
CLAWSON CLAWSON, L.L.P., Attn: MICHAEL CLAWSON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: CRAIG R. ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS GLENDA JOHNSON, DENVER, CO, (Other Party).
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