W.C. No. 4-149-902Industrial Claim Appeals Office.
December 7, 1998
FINAL ORDER
The claimant and the respondents petitioned separately for review of an order of Chief Administrative Law Judge Felter (ALJ) which assessed penalties for the respondents’ unilateral termination of temporary disability benefits. We affirm.
The claimant suffered a compensable injury in 1992. Dr. Ring performed an independent medical examination (IME) on September 30, 1997, at the respondents’ request. On December 8, 1997, Dr. Ring recommended the claimant undergo a three phase bone scan to rule out reflex sympathetic dystrophy (RSD).
On October 24, 1997, a stipulated order was entered which required the respondents to pay temporary total disability benefits commencing August 20, 1997, and to provide diagnostic testing to determine the existence of RSD. The respondents subsequently scheduled a medical appointment for the claimant to undergo a three phase bone scan. The claimant refused to attend the appointment on grounds that Dr. Ring is not an authorized treating physician, and that the authorized treating physician, Dr. Wright, has not recommended a three phase bone scan. The respondents rescheduled the appointment for April 28, 1998, and advised the claimant that failure to attend the rescheduled appointment may “adversely affect her disability benefits.” The claimant did not attend the April 28 appointment. As a result, the respondents filed a general admission of liability which terminated temporary total disability benefits effective April 28, 1997. The claimant objected and requested penalties for the respondents’ unilateral termination of benefits.
Based upon the evidence presented at a hearing on July 14, 1997, the ALJ determined that the respondents had “no justification” for the unilateral termination of temporary total disability benefits. The ALJ found that Dr. Ring is an IME physician, and not an authorized treating physician or attending physician. The ALJ also found that Dr. Wright did not refer the claimant to Dr. Ring. Therefore, the ALJ ordered the respondents to reinstate temporary total disability benefits effective April 29, 1997, and imposed penalties against the respondents at the rate of $50 per day from April 29, 1998 to July 14, 1998.
I.
On review, the respondents dispute the ALJ’s finding that they had no justification to terminate the claimant’s temporary disability benefits. In support, the respondents cite the Rules of Procedure, Part IX(C)(1)(e), 7 Code Colo. Reg., 1101-3 at 34, which provide that an insurer may unilaterally terminate temporary total disability benefits by the filing of an admission of liability with :
“a certified letter to the claimant or copy of written offer delivered to the claimant with signed certificate of service, advising that temporary disability benefits will be suspended for failure to appear at a rescheduled medical appointment, and a statement from the authorized treating physician documenting the claimant’s failure to appear “
The respondents contend the ALJ erred in finding that Dr. Ring is not an “authorized treating physician” for purposes of Rule IX(C)(1)(e). Furthermore, the respondents contend that because Dr. Ring recommended the three phase bone scan, the claimant’s failure to attend the rescheduled bone scan appointment justified the termination of temporary disability benefits. We disagree.
“Authorization” as the term issued in workers’ compensation cases, is the legal authority to provide treatment, and receive payment. See Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). A physician’s status as an “authorized treating physician” is a question of fact for resolution by the ALJ. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Insofar as the evidence is subject to conflicting inferences, we must defer to the ALJ’s resolution of the conflicts and plausible inferences drawn from the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
The record contains substantial evidence that Dr. Ring did not consider himself to be a “treating physician.” Dr. Ring’s IME report dated September 30, 1997, explicitly states that “at no time was a physician/patient relationship entertained.” Furthermore, in his report dated December 8, 1997, Dr. Ring stated, “I would leave this [trial of oral sympatholytic agents] to the discretion of the treating physicians.”
Furthermore, the stipulated order states that:
“Robert E. Wright M.D. who is currently an authorized treating physician for the claimant and he [sic] is authorized by the Respondent to perform or order diagnostic tests to determine the existence of reflex sympathetic dystrophy. Doctor Wright shall consult with Respondent’s non-division IME Doctor, Dr. Floyd Ring, regarding any diagnostic tests that he deems appropriate.”
The respondents argue that the requirement for Dr. Wright to “consult” with Dr. Ring reflects the parties’ agreement that Dr. Ring would be involved in the claimant’s treatment and created “limited authorization” of Dr. Ring to be an authorized treating physician for purposes of diagnostic testing.
However, the order explicitly states that Dr. Wright is the authorized treating physician and Dr. Ring is the “non-division IME physician.” Further, the requirement that Dr. Wright “consult” with Dr. Ring does not establish that Dr. Ring was authorized to prescribe any testing without Dr. Wright’s approval. Under these circumstances, the ALJ could reasonably infer that the stipulated order does not reflect an agreement to establish Dr. Ring as an authorized treating physician.
The respondents’ arguments notwithstanding, the record also supports the ALJ’s finding that Dr. Wright did not refer the claimant to Dr. Ring. Dr. Wright’s letter dated October 30, 1997, merely indicates Dr. Wright’s interest in getting “Ring’s opinion on the appropriateness of spinal cord stimulation.” Moreover, the letter states that a new associate in Dr. Wright’s office will be involved in the management of the claimant’s case. However, the letter contains no similar statement about Dr. Ring.
Alternatively, the respondents contend that Dr. Ring is an “attending physician” within the meaning of § 8-42-105(2)(c), C.R.S. 1998, which provides that temporary disability benefits may be suspended where the claimant fails to appear at an rescheduled appointment with the respondents’ “attending physician.” Therefore, the respondents contend that the unilateral termination of benefits was proper under § 8-42-105(2)(c).
In Popke v. Industrial Claim Appeals Office, supra, the court held that an “attending physician” is a physician who takes care of the claimant. The court also held that “attending physicians are limited to authorized treating physicians,” and that the determination of whether a physician is an “attending physician” is factual in nature. Id. at 681.
Here, the ALJ expressly rejected the respondents’ contention that Dr. Ring is an “attending physician,” and that determination is a plausible inference from the record. Therefore, we need not consider the respondents’ remaining arguments concerning §8-42-105(2)(c).
Moreover, the ALJ’s finding that Dr. Ring is neither an authorized treating nor attending physician supports his determination that the claimant’s failure to attend the bone scan recommended by Dr. Ring does not establish grounds for the unilateral termination of temporary disability benefits under Rule IX(C)(1)(e). Therefore, the ALJ did not err in finding that the unilateral termination of benefits violated Rule IX.
II.
Nevertheless, the respondents contend the ALJ made no finding concerning the reasonableness of their actions. Therefore, the respondents argue that the ALJ’s findings of fact are insufficient to determine whether the ALJ erroneously imposed penalties under §8-43-304(1), C.R.S. 1998. We reject this argument.
Section 8-43-304(1) allows an ALJ to impose penalties for the insurer’s negligent violation of a procedural rule. See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312
(Colo.App. 1997). Negligence is determined by the reasonableness of the insurer’s actions, which in turn depends on whether the actions were predicated on a rational argument based on law or fact. Diversified Veterans Corporate Center v. Hewuse, supra; Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995).
The ALJ is not held to a crystalline standard in articulating his findings of fact. The ALJ’s findings are sufficient if the basis for the order is apparent. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
Here, the ALJ determined that the respondents had “no justification” for the unilateral termination of temporary disability benefits. (Conclusion of Law 4), see also (Tr. p. 15) CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). We read the ALJ’s finding to reflect his determination that the respondents lacked any plausible reason for the termination of benefits, and therefore, he implicitly determined that their conduct was not predicated on a rational argument based in law or fact. Therefore, we need not remand the matter for additional findings of fact.
Further, we reject the respondents’ contention that their actions are “per se” reasonable because they were based upon their belief that Dr. Ring is an “authorized treater.” Contrary to the respondent’s argument, the mere fact that the parties had a factual dispute concerning Dr. Ring’s status does not render their actions “per se” reasonable.
The determination of whether the respondents’ belief about Dr. Ring’s status was reasonable was a factual determination for the ALJ. In this case, the respondents presented no documentary evidence or testimony to explain the reasons for their unilateral termination of benefits, and the arguments of the respondents’ attorney may not substitute for evidence which is not in the record. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987). Under these circumstances we cannot say that the ALJ erred in finding that the respondents’ actions were not based on a reasonable belief that Dr. Ring is an authorized treating physician.
III.
The claimant contends the circumstances warrant a penalty in excess of $50 per day, and therefore, the claimant contends the ALJ erred in failing to impose a greater penalty. The claimant also contends the ALJ should have assessed penalties from May 29, 1997, to the date the respondents actually reinstated temporary total disability benefits rather than terminating the penalty on July 14, 1997. We are not persuaded.
Under § 8-43-304(1) the amount of the penalty imposed is discretionary with the ALJ up to a maximum of $500 per day. We may not disturb the amount of the penalty in the absence of an abuse of discretion. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The legal standard for review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reasons, as where it is not supported by the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993).
At the conclusion of the hearing, the ALJ found that the claimant requested penalties at the rate of $50 per day. (Tr. p. 15). The ALJ’s finding is supported by the Claimant’s Position Statement submitted on July 14, 1998. Under these circumstances, we cannot say the ALJ abused his discretion in failing to impose penalties in excess of $50 per day. Cf. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (party may not take one position before ALJ and argue a contrary position on appeal).
Furthermore, the ALJ could, and did, reasonably infer that the respondents’ refusal to pay temporary disability benefits ended on July 14, 1998, when he orally ordered them to reinstate temporary total disability benefits. (Tr. p. 19). Therefore, we perceive no abuse of discretion in the ALJ’s refusal to assess penalties after July 14. Moreover, to the extent that the respondents continue to withhold temporary disability benefits, the claimant is not precluded from seeking additional penalties.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 28, 1998, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 7, 1998
to the following parties:
Cheryl A. Davis-Kirkland, 1488 Douglas Dr., Denver, CO 80221
Penske, Attn: Personnel Department, P.O. Box 563, Reading, PA 19603
Gallagher Basset Services Inc., Attn: Connie Rivera, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Kathleen Pennucci, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail
Robert K. Gruber, Esq., 675 Grant St., Denver, CO 80203-3506 (For Claimant)
Kathleen M. North, Esq. and Alyson A. Ray, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: ____________