W.C. No. 4-498-567.Industrial Claim Appeals Office.
June 2, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied penalties for the respondents’ allegedly wrongful termination of temporary disability benefits. We affirm.
The claimant suffered a work-related injury to his left shoulder. The employer admitted liability for temporary disability benefits and referred the claimant to Dr. Boulder for treatment. On March 15, 2002, the claimant underwent shoulder surgery by Dr. Walden. In a letter dated August 18, 2002, Dr. Walden referred the claimant back to Dr. Boulder and stated, “I would return [the claimant] to work at this point with no restrictions.” The claimant was reexamined by Dr. Boulder on August 20, 2002. The “Patient Status” section of Dr. Boulder’s “Activity Status Report” dated August 20 states:
“Regular Activity-Referred, but returning for follow-up visit. Return to regular duty on 08/20/2002”
Based on the Activity Status Report the respondents filed a General Admission of Liability which terminated temporary disability benefits effective August 20, 2002. The claimant subsequently applied for a hearing and requested an order imposing penalties for the respondents’ wrongful termination of temporary disability benefits in violation of § 8-42-105(3)(c), C.R.S. 2002.
The ALJ found that Dr. Boulder’s August 20, 2002, report is “difficult to understand and could easily be made much simpler.” However, the ALJ also found the letter clearly stated that the claimant is to return to regular duty on August 20, 2002. Under these circumstances, the ALJ found the respondents did not wrongfully terminate temporary disability benefits. Therefore, the ALJ denied the request for penalties.
On review the claimant essentially contends Dr. Boulder’s August 20 report is legally insufficient to support the unilateral termination of temporary total disability benefits because the report is ambiguous and does not explicitly reflect the physician’s awareness of the employment to which he is releasing the claimant. Therefore, the claimant argues the ALJ erroneously denied the request for penalties. 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 complete 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.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once established, benefits continue until the respondent proves grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-105(3)(c), C.R.S. 2002 provides that temporary total disability benefits terminate when the “attending physician gives the claimant a release to return to regular employment.”
However, the termination of benefits without a hearing is governed by the Rules of Procedure, Part IX(C)(1), 7 Code Colo. Reg. 1101-3 at 34 Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358
(Colo.App. 1997). Rule IX(C)(1)(b) provides that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability form which is accompanied by “a medical report from the authorized treating physician who has provided the primary care stating the claimant is able to return to regular employment.”
Although the claimant did not identify the penalty statute he relied upon, we agree with the respondents 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 court has held that the failure to comply with the Rules of Procedure is a failure to perform a “duty lawfully enjoined” within the meaning of § 8-43-304(1) See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312
(Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094
(Colo.App. 1996).
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 violator’s actions which resulted in the violation were objectively unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA1437, March 13, 2003); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). Accordingly, the issue is not whether Dr. Boulder’s medical reports are unambiguous. Rather the pertinent issue is whether the respondents could reasonably infer that Dr. Boulder’s August 20 report is a release to regular employment.
Generally the determination of whether the insurer’s actions were objectively unreasonable is a question of fact for resolution by the ALJ. City Market, Inc. v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002.
Dr. Boulder’s August 20 Activity Status Report expressly releases the claimant to return to work. Furthermore, the “Plan” section of Dr. Boulder’s narrative report from that examination, states that the claimant will see Dr. Hattem for an impairment rating on September 3, 2002 and “[H]e may return to regular duty in the meantime.” Accordingly, there is substantial evidence in the record to support the ALJ’s finding the respondents reasonably relied on Dr. Boulder’s August 20 medical report as a release to return to regular employment for purposes of terminating temporary disability benefits under Rule IX(C)(1)(b). Consequently, it is immaterial the ALJ found Dr. Boulder’s letter is not a model of clarity. Further, evidence the claimant was subsequently restricted from regular employment does not compel a conclusion that Dr. Boulder did not release the claimant to regular employment as of August 20, 2002. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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 testimony or contrary inferences).
The claimant did not provide a transcript of the hearing and we are unable to locate any documentary evidence to support the claimant’s contention that Dr. Boulder was unaware of his regular employment. Further, there is no requirement that the release to regular employment explicitly reflect the physician’s knowledge of the claimant’s regular employment, and we decline to read such a requirement into Rule IX(C)(1)(b). Therefore, the absence of such evidence does not automatically invalidate Dr. Boulder’s release.
Moreover, the ALJ’s factual determinations support the conclusion the claimant failed to sustain his burden to prove a violation of Rule IX(C)(1)(b). Therefore, the ALJ did not err in denying the request for penalties.
Insofar as the claimant also contends § 8-42-105(3)(c) is unconstitutional we lack jurisdiction to resolve the claimant’s contention. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Similarly, we have no statutory authority to establish “appropriate Rules to guide respondents reliance upon § 8-42-105(3)(c) to terminate temporary total disability benefits.” See § 8-47-107 C.R.S. 2002 (Director of the Division of Workers’ Compensation granted power to adopt rules). Therefore, we deny the claimant’s request to do so.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 13, 2003, 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 2, 2003 to the following parties:
James Crawford, 5102 Galley Rd., Lot 228A, Colorado Springs, CO 80915
Western Distribution, Inc., P. O. Box 5542, Denver, CO 80217-5542
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John Stevens, Esq., 1625 Broadway, #2300, Denver, CO 80202
BY: A. Hurtado