W.C. No. 4-537-575Industrial Claim Appeals Office.
July 23, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 7, 2003, which denied her request for the imposition of penalties and certain temporary disability benefits. We affirm.
On January 30, 2002, the claimant was injured in the course of her employment as the owner/operator of a Blackjack Pizza store. The respondents filed a first report for a right hand injury and provided treatment from Dr. Olenick. In the course of treatment, Dr. Olenick noted problems with the claimant’s left hand. On July 25, 2002, Dr. Olenick placed the claimant at maximum medical improvement (MMI) without permanent impairment and discharged the claimant from treatment.
The respondents admitted liability for temporary partial disability benefits during the period April 9, 2002 to May 22, 2002, the date Dr. Olenick released the claimant to return to her regular employment. However, on September 3, 2002 the respondents filed a final admission of liability based on Dr. Olenick’s July 25 report. The claimant timely objected to the final admission and filed a new Workers’ Claim for Compensation which alleged bilateral hand injuries on January 30, 2002. The respondents contested liability for the left hand injury until January 2, 2003.
The claimant applied for a hearing on the issues of temporary disability and penalties. The claimant alleged the September 3 final admission was premature and violated the Rules of Procedure, Part IV(N), 7 Code Colo. Reg. 1101-3.
The ALJ found the claimant failed to prove the final admission violated Rule IV(N). Therefore, the ALJ denied the claim for penalties. However, the ALJ awarded temporary partial disability benefits for the period June 5 to August 19, 2002, the date Dr. Olenick released the claimant to regular employment and the period November 6, 2002, through January 18, 2003, the date the claimant left work due to her pregnancy. The claimant timely appealed.
The claimant’s Petition to Review alleged the ALJ erroneously 1) failed to include a clause reserving all other issues for future determination; 2) failed to impose penalties and 3) awarded “too little” temporary partial disability benefits. The claimant filed a brief in support of the Petition to Review dated May 6, 2002, which argued the ALJ erroneously denied the claim for penalties. However, the brief did not make any argument in support of the claimant’s contention that additional temporary disability benefits are due.
After the date of the filing of the respondents’ brief in opposition to the petition to review, and the date the file was transmitted for our review, the claimant filed a “Reply Brief,” in which she contends the ALJ erroneously failed to award temporary partial disability benefits for the period January 30, 2002 to April 8, 2002 and ongoing benefits commencing May 23, 2003.
The respondents have moved to strike the claimant’s Reply Brief. We grant the respondents’ motion.
Section 8-43-301(4), C.R.S. 2002, does not provide for the filing of a “reply brief.” Neither does Rule of Procedure VII (D), 7 Code Colo. Reg. 1101-3, provide for reply briefs. Although, we may have discretionary authority to permit the filing of a reply brief, we see no need for such a brief in this case where the claimant failed to present legal argument on claim for temporary disability benefits in her opening brief and waited until after her receipt of the respondents’ opposition brief to present a detailed argument on the issue. Furthermore, the ALJ has apparently not considered the Reply Brief and our review is limited to the record before the ALJ. See City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995).
Temporary disability benefits are payable when the industrial injury results in a “disability” lasting more than three work shifts, and causes an actual loss of wages. Section 8-42-103(1), C.R.S. 2002. In the context of temporary disability benefits, the term “disability” refers to the claimant’s physical inability to perform her regular employment. Section 8-42-103(1), C.R.S. 2002; PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995); McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Where the claimant returns to modified employment but works less hours than her preinjury job, or is paid at a reduced wage, the claimant is entitled to temporary partial disability benefits equal to sixty-six and two-thirds percent of the difference between the employee’s average weekly wage at the time of the injury and the claimant’s average weekly wage during the continuance of the temporary partial disability. Section 8-42-106(1), C.R.S. 2002. Lee v. Sealy Corporation, W.C. 4-179-535
(December 6, 1994).
Here, the ALJ implicitly determined the claimant failed to prove a “disability” prior to April 9, 2002 or during the periods May 23, 2002 through June 4, 2002 and August 20, 2002 through November 5, 2002. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ’s order). The claimant’s arguments notwithstanding, the ALJ’s determination is consistent with the medical records of Dr. Zinis and Dr. Olenick. Moreover, the claimant’s Petition to Review and Brief in Support of the Petition to Review contain no specific arguments concerning her claim for further temporary disability benefits. Under these circumstances, the claimant has failed to established grounds which afford us a basis to interfere with the award.
The claimant also renews her contention that the September 3 final admission of Liability was prematurely filed and violated Rule IV(N). We disagree.
Although the claimant did not identify the penalty statute she 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 courts have 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 the procedural rule. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). However, even if a violation is found no penalties may be imposed unless the ALJ also finds the violator’s actions were objectively unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003).
Section 8-42-107(8)(c), C.R.S. 2002, provides that after MMI has been determined, an authorized treating physician shall determine the claimant’s medical impairment rating as a percentage of the whole person. Rule IV(N)(5), 7 Code Colo. Reg. 1101-3 at 7.03, which applies to injuries governed by § 8-42-107(8), provides that within 30 days of the mailing or delivery of a determination of medical impairment by an authorized level II accredited physician the respondents shall file an admission consistent with the physician’s opinions or request a Division-sponsored independent medical examination (DIME) to dispute the physician’s findings. Rule IV(N)(8) provides that for claims governed by § 8-42-107(2), the respondents shall either file an admission or set the matter for hearing within 30 days after a medical determination of permanent impairment by a level II accredited physician is mailed or delivered.
Under § 8-42-107(1)(a), C.R.S. 2002 a claimant suffers a scheduled disability where the claimant suffers an injury or injuries described in § 8-42-107(2). Strauch v. PSL Swedish Healthcare System, 917 P.2d 366
(Colo.App. 1996). In this context, the term “injury,” refers to the manifestation in a part or parts of the body which have been functionally impaired or disabled as a result of the industrial accident. Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). An injury to the hand or arm at the shoulder is a scheduled disability. In contrast, an injury not described in the schedule of disabilities is governed by under § 8-42-107(8) .
There has been is no determination whether the claimant suffered functional impairment on or off the schedule. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996) (situs of functional impairment is a question of fact for resolution by the ALJ). In either case, the ALJ properly denied the request for penalties.
On July 25, 2002, Dr. Olenick issued a medical report which indicated the claimant reached MMI for the January 30 injury. The report also stated the claimant had no permanent medical impairment from the injury. It appears uncontested Dr. Olenick is a level II accredited treating physician. It follows that Rule IV(N) required the respondents to take one of the prescribed courses of action within 30 days of the date Dr. Olenick’s report was mailed or received. The filing of a final admission is one of the prescribed actions available to the respondents. Consequently, the ALJ did not err in finding the respondents filing of the September 3 final admission did not violate Rule IV(N). Evidence that Dr. Olenick’s report was incomplete insofar as it failed to address the claimant’s left hand injury, does not alter the time sensitivity of Rule IV(N).
Davis v. Sam’s Club, W.C. No. 4-422-332 (December 6, 2001), is not authority to the contrary. In Davis we upheld an ALJ’s imposition of penalties for the insurer’s violation of Rule IV(N). Contrary to the claimant’s contention, the insurer was not penalized for prematurely filing of a final admission. Rather, an ALJ imposed penalties because the final admission did not conform to the requirements of Rule IV(N) in that it was not accompanied by supporting documents on the issue of permanent disability. Here unlike Davis, there is no finding or assertion that the September 3 final admission failed to conform to the requirements of Rule IV(N)(5) or (8).
The claimant’s further arguments on this issue have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated, February 7, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ___________________________________ Robert M. Socolofsky
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 July 23, 2003 to the following parties:
Nathalie A. Garcia, 15700 Riverdale Rd., Brighton, CO 80602
JAMM d/b/a Blackjack Pizza, 524 Pearl St., Denver, CO 80203
Legal Department, Pinnacol Assurance — Interagency Mail
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
T. Paul Krueger, II, Esq. and Dawn Yager, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado