W.C. No. 3-718-863Industrial Claim Appeals Office.
April 21, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) dated November 7, 1996. We modify the order, and as modified affirm it.
The following facts are undisputed. The claimant suffered a compensable injury in 1983. On April 23, 1996, the El Paso County Court entered a default judgment in favor of the Credit Service Company Inc., as assignee for Penrose Hospital, and against the claimant and her husband in the amount of $1,314.32. The judgment consisted of “Principal” in the amount of $800 for medical services provided on October 24, 1989 and March 7, 1990; “Interest at 12.00%” in the amount of $322.30, “Attorney Fees” of $150, and “Court Costs” of $42.
On April 30, 1996, the claimant filed an Application for Hearing on the issues of medical benefits and penalties. A hearing was scheduled before the ALJ on November 1, 1996.
Based upon the evidence presented at the hearing, the ALJ found that the claimant incurred medical expenses at Penrose Hospital in the amount of $800 for treatment which was reasonable and necessary to cure or relieve the effects of the claimant’s 1983 industrial injury. Therefore, the ALJ determined that the respondents are liable for the $800 of medical bills incurred by the claimant at Penrose Hospital. Further, the ALJ determined that, as a result of the respondents’ failure to pay the medical bills, the debt was reduced to a judgment against the claimant and her husband. Consequently, the ALJ determined that the respondents are responsible for satisfying the El Paso County Court judgment.
I.
On review the respondents first contend that there were denied due process of law. Specifically, the respondents contend that they did not have advance notice that the claimant was seeking an order requiring them to pay a judgment. Further, the respondents argue that they did not have advance notice that the claimant intended to introduce documents from the El Paso County Court case. We reject these arguments.
It goes without saying that the respondents were entitled to notice of the legal and factual issues to be adjudicated at the hearing Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990). However, parties may waive the right to notice. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
At the commencement of the hearing claimant’s counsel explained that the claimant was seeking an order for the payment of medical bills which had been reduced to judgment by the El Paso County Court. (Tr. p. 4). The respondents did not object to the ALJ’s consideration of the issue. (Tr. pp. 4-5). To the contrary, had the respondents believed that they were unfairly surprised by the issues, they could have requested a continuance. They did not, and therefore, the respondents waived their notice argument. Robbolino v. Fischer-White Contractors, supra; Tapia v. Arkansas Valley Regional Medical Center, W.C. No. 3-359-637, December 24, 199 , aff’d. Arkansas Valley Regional Medical Center v. Tapia
(Colo.App. No. 93CA0050, September 9, 1993) (not selected for publication).
Similarly, respondents’ counsel expressed no surprise at and no objection to, the admission of documents from the El Paso County Court case. (Tr. pp. 6, 9). Therefore, the respondents’ failed to preserve their due process argument concerning the ALJ’s consideration of those documents. See C.R.E. 103(a)(1). As a result, we need not address the respondents’ further argument that the documents were inadmissible hearsay.
II.
We also reject the respondents’ argument that the claim is barred under the doctrine of “laches.” The equitable doctrine of laches may be used to deny relief to a party whose unconscionable delay in enforcing her rights has prejudiced the party against whom enforcement is sought Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994); Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987). However, because “laches” is an affirmative defense, it is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
The record does not indicate that the respondents raised the “laches” argument prior to the filing of their Petition for Review. (Tr. pp. 4-5). Under these circumstances, the respondents’ waived the laches defense.
III.
Next, the respondents contend that there is no evidence concerning the type of medical treatment which Penrose Hospital provided to the claimant. Therefore, the respondents argue that the claimant failed to sustain her burden to prove that the disputed medical bills involved medical treatment which was reasonable and necessary to treat the industrial injury. The respondents also argue that the record is insufficient to support the ALJ’s finding that the disputed medical bills have not been paid. We disagree.
Admittedly, the respondents are only liable for medical treatment which is reasonable and necessary to “cure and relieve” the claimant from the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. (1996 Cum. Supp.); Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). However, the determination of whether the claimant has sustained her burden to prove that the treatment was reasonably necessary is a question of fact for resolution by the ALJ See City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, the claimant and her husband were the only witnesses to testify at the hearing, and the ALJ found that their testimony was uncontradicted. Furthermore, the ALJ found that their testimony was credible. (Finding of Fact.).
The claimant’s husband stated that, for several years, Penrose Hospital had been demanding payment for the disputed medical bills. The claimant’s husband stated that these bills were related to medications provided to the claimant for treatment of the 1983 industrial injury. (Tr. pp. 7-13). The claimant added that she was not receiving treatment for any non-occupational condition at the time these expenses were incurred. (Tr. p. 13).
Contrary to the respondents’ arguments, this testimony is sufficient to support the ALJ’s finding that the treatment provided by the Penrose Hospital was related to treatment for the industrial injury. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995) (on review, evidence must be viewed in the light most favorable to prevailing party). Furthermore, in the absence of any evidence to the contrary, the ALJ could, and did, infer from this testimony that the services provided by the Penrose Hospital were “reasonably necessary” to treat the industrial injury. See Lantern Inn v. Industrial Commission, 624 P.2d 929
(Colo.App. 1981) (where there is no direct evidence the issue on review is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances); Hoffman v. Aero Mayflower Transit, Inc.,
W.C. No. 4-108-582, October 11, 1995, aff’d. Aero Mayflower Transit, Inc., v. Hoffman, (Colo.App. No. 95CA1882, August 22, 1996) (not selected for publication).
The claimant and her husband also stated that they had not paid the disputed medical expenses, and the respondents presented no evidence that the bills had been paid. Under these circumstances the record supports the ALJ’s finding that the Penrose Hospital bills remained unpaid as of the date of the hearing. Therefore, we are bound by the ALJ’s determination that the respondents are liable for the disputed medical expenses.
IV.
However, we agree with the respondents that the ALJ exceeded his jurisdiction in ordering them to satisfy the El Paso County judgment. The ALJ’s authority is strictly statutory, and the ALJ is limited to the specific powers and duties prescribed by the Workers’ Compensation Act (Act). Lewis v. Scientific Supply Co., supra. Thus, the ALJ is precluded from imposing liability on an insurer to satisfy a civil court judgment, unless some provision of the Act grants the ALJ jurisdiction over that issue. Lewis v. Scientific Supply Co., supra.
Section 8-43-207 C.R.S. (1996 Cum. Supp.), affords the ALJ original jurisdiction to resolve any controversy arising under the Act. Further, § 8-43-215 C.R.S. (1996 Cum. Supp.) directs the ALJ to issue enter orders determining “by whom and to whom” workers’ compensation benefits are due. See State Farm Mutual Automobile Insurance Company v. Mountain Medical Associates, W.C. No. 3-108-329, December 4, 1995. This includes the authority to determine liability for medical benefits. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986); Hoffman v. Aero Mayflower Transit, Inc., supra.
However, the Act does not allow an ALJ to award interest in excess of eight percent per annum for unpaid medical benefits. See § 8-43-410(2), C.R.S. (1996 Cum. Supp.) [formerly § 8-52-109(2), C.R.S. (1986 Repl. Vol. 3B)]. Nor does the Act allow an ALJ to require an insurer to pay court costs and attorney fees assessed in a separate civil action involving the claimant. Compare, § 8-43-408(4), C.R.S. (1996 Cum. Supp.) [formerly § 8-44-107(4) C.R.S. (1986 Repl. Vol. 3B)]. Consequently, the ALJ lacked jurisdiction to order the respondents to satisfy that part of the El Paso County Court judgment which pertains to court costs, attorney fees and interest of 12% per annum. Cf. Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo.App. 1994) (award of attorney fees not authorized absent statutory authority).
The respondents argue and the claimant agrees that to remedy the ALJ’s error we should modify the ALJ’s order to require the respondents to pay only that portion of the judgment which pertains to the unpaid medical expenses at Penrose Hospital. We agree, and therefore, modify the ALJ’s order accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 7, 1996, is modified to require the respondents to pay $800 to the Penrose Hospital for medical treatment provided to the claimant in this claim, plus interest at the statutory rate authorized by the Workers’ Compensation Act, and as modified the order 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. (1996 Cum. Supp.).
Copies of this decision were mailed April 21, 1997 to the following parties:
Jeanine Garman, 205 N. Murray, Lot 92, Colorado Springs, CO 80916
Regis Hair Stylists, 5000 Normandale Rd., Minneapolis, MN 55436
Regis Hair Stylists, c/o David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80202
Margaret Malone, Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80202 (For the Respondents)
Patrick McDivitt, Esq., 90 S. Cascade, Ste. 1490, Colorado Springs, CO 80903 (For the Claimant)
By: _______________________________