W.C. No. 4-734-158.Industrial Claim Appeals Office.
May 17, 2011.
FINAL ORDER
The respondents seek review of an order on remand of Administrative Law Judge Jones (ALJ) dated September 22, 2010 that penalized the claimant in the amount of $137 for his failure to attend an independent medical examination and that awarded the claimant permanent partial disability benefits based upon an impairment rating of 29 percent of the whole person. We affirm.
This matter was previously before us. In an order dated October 15, 2009 the ALJ dismissed the claimant’s claim as a discovery sanction. The ALJ found that following the claimant’s compensable injury of August 7, 2007, ALJ Walsh entered an order that the claimant’s injuries were to his right hand and wrist. The ALJ found that the claimant reached maximum medical improvement on December 22, 2008 with scheduled impairment equal to 12 percent of the wrist and hand. However, the ALJ determined that the claimant’s claim for permanent partial disability benefits was moot because she found that he committed various discovery violations. Specifically, she found that he failed to attend an independent medical examination despite being ordered to do so and he failed to answer interrogatories. The ALJ dismissed the claimant’s claim with prejudice as a sanction for the discovery violations.
The claimant appealed and we concluded that the ALJ abused her discretion in dismissing the claim with prejudice. We held that, although penalties or sanctions were warranted based upon the ALJ’s factual findings, those sanctions could have included a
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wide range that included dismissal of the claim for permanent partial disability benefits or statutory penalties, neither of which would have dismissed the claim entirely. However, by dismissing the admittedly compensable claim with prejudice, the ALJ precluded the claimant from seeking medical benefits in the future, either to maintain his condition at maximum medical improvement or in the event of a worsening of his condition. We concluded that dismissal of the claim was disproportionate to his conduct in obstructing the respondents from obtaining an independent medical examination report. Accordingly, we set aside the ALJ’s order and remanded for entry of another order on the issue of discovery sanctions or penalties and, if appropriate, the issue of permanent partial disability benefits.
A hearing was held following the remand on the issues of the appropriate sanction or penalty for the claimant’s discovery violations and his entitlement to permanent partial disability benefits if any. No evidence was taken at the hearing, which was limited to the arguments of the parties. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant injured himself on August 7, 2007 and a hearing was held on the compensability of the injury. ALJ Walsh entered an order on February 25, 2008 determining that the claimant injured his right hand and wrist. The respondents appealed the order and by order dated September 3, 2008 we set it aside insofar as it awarded temporary total disability benefits and we remanded for further proceedings on that issue. We dismissed the petition to review the order as it pertained to the compensability of the hand and wrist injury and the relatedness of other conditions, on the ground that the order was interlocutory in that respect.
The ALJ further found that the claimant’s authorized treating physician placed the claimant at maximum medical improvement on December 22, 2008. He assigned permanent impairment ratings of 29 percent of the whole person and upper extremity impairment of 47 percent. The whole person impairment rating was attributable to impairment of the claimant’s lumbar and cervical spine. The respondents did not request a Division-sponsored independent medical examination (DIME), but rather applied for a hearing on the scheduled rating for the claimant’s right hand and wrist.
The hearing was scheduled for June 4, 2009. Prior to the hearing the respondents requested that the claimant attend an independent medical examination (IME) to be conducted by Dr. Larson. The claimant failed to attend the IME, although the claimant was able to attend and could have driven to the appointment. The respondents applied for a hearing on the issue of penalties for the claimant’s failure to attend the IME and also sought an order compelling his attendance at the IME. ALJ Stuber entered such an order; however, the claimant failed to attend the second IME, despite being able to attend. The hearing previously set for June 4, 2009 was continued to July 28, 2009, which was then
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rescheduled for hearing before this ALJ on August 28, 2009. ALJ Walsh consolidated two applications for hearing, one seeking penalties for the claimant’s discovery violations and the other seeking permanent partial impairment benefits. The respondents served interrogatories on the claimant, who failed to answer them in a timely fashion.
The ALJ found that the claimant had no explanation for his refusal to comply with his discovery obligations, both in respect to attendance at the IME and responding to the interrogatories. The ALJ imposed statutory penalties of $1.00 per day for those violations, for a total penalty of $137.
The ALJ also found that the respondents were bound by the impairment rating issued by Dr. Hall, who was the authorized treating physician. She ordered the respondents to pay permanent partial disability benefits based upon his rating of 29 percent of the whole person.
The respondents appealed and make two arguments. First, the respondents argue that the ALJ erred in awarding permanent partial disability benefits based on impairment of body parts that had already been determined not to be related to the industrial injury. And, second, the respondents argue that the ALJ abused her discretion in assessing penalties against the claimant for his failure to comply with discovery obligations.
I.
The respondents first argue that in a previous order ALJ Walsh determined that the claimant’s injuries were limited to his hand and wrist, and that the authorized treating physician’s later impairment rating for numerous other body parts could not require them to obtain a DIME in light of ALJ Walsh’s order. We disagree with the respondents’ argument in this respect.
The respondents argue that as a “threshold” matter, compensability was limited by ALJ Walsh to the injuries the claimant sustained to his hand and wrist. In support of their argument that “[o]rders entered by ALJs concerning the threshold matter of compensability are final and binding” the respondents cite Holnam v. Industrial Claim Appeals Office, 159 P.2d 795 (Colo. App. 2006). In Holnam the court of appeals applied the doctrines of claim and issue preclusion. Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action. Bebo Construction Co. v. Mattox O’Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions. Id. It has been extended to administrative proceedings, where it “may bind parties to an administrative agency’s findings of fact or conclusions of law.”Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). However, for issue preclusion to bar
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relitigation of an issue that has previously been finally resolved, there must be an exact identity between the two issues. Sunny Acres Villa, Inc. v. Cooper, supra. The respondents’ argument suggests that an ALJ could rule that a work-related injury was “limited” to certain body parts and thereby foreclose any future disputes about the relatedness of other conditions, despite developments that may have been unforeseen by the ALJ. It is unlikely in these circumstances that the necessary identity of issues would exist in order for issue preclusion to apply.
More importantly, here we perceive nothing in ALJ Walsh’s order that “limits” the claimant’s injuries for all future purposes to his hand and wrist. ALJ Walsh states that the issues for resolution were whether the claimant sustained a compensable injury, whether he was entitled to medical benefits, and whether he was entitled to temporary total disability benefits. It is true that ALJ Walsh referred several times to the claimant having injured his “hand and wrist.” However, aside from a finding that Dr. Hall diagnosed a number of conditions, including thoracic outlet symptoms and a neck strain, the ALJ did not enter findings regarding the relatedness of other conditions. We do not understand his order as finding that only the claimant’s wrist and hand were injured. Indeed, the basis for our dismissal of the claimant’s petition to review ALJ Walsh’s order insofar as it “limited” compensability to the hand and wrist was that we did not read the order as doing so. We observe that although there were apparently some medical bills in dispute, the order did not deny any specific medical treatment. In light of ALJ Walsh’s reservation of all undecided issues, we inferred that he contemplated the “any disputes over the relatedness of future medical treatment, either for the claimant’s left hand or some other condition, would be adjudicated when those disputes arose.”
Determining causation is inherent in the treating physician’s determination of MMI. Egan v. Industrial Claim Appeals Office of State 971 P.2d 664 (Colo. App. 1998); Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996). Here, the facts related to this dispute appear to be largely undisputed and we do not disagree with the ALJ’s conclusion that the respondents’ receipt of the report of maximum medical improvement and the impairment ratings triggered its responsibility under § 8-42-107.2(2)(b) and W.C. Rule of Procedure 5-5(E) to either file an admission of liability consistent with the physician’s opinion or request a DIME by filing a Notice and Proposal to Select a DIME within the thirty day period. Accordingly, because her factual findings are supported by substantial evidence and her order is consistent with applicable law, we affirm the order in this regard. Section 8-43-301(8), C.R.S.
II.
The respondents also argue that the ALJ abused her discretion in imposing statutory penalties in the amount of $137 for the claimant’s discovery violations. In this regard, the respondents argue that the ALJ’s previous order dismissing the claim with
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prejudice was within her discretion and that we erred in concluding otherwise. The respondents also argue that the minimal penalty imposed by the ALJ is grossly disproportionate to the harm the respondents sustained by the claimant’s conduct, and they argue that the ALJ erred in failing to address several of their arguments. We are unpersuaded that the ALJ erred or abused her discretion in these respects.
The respondents first argue that we erred in setting aside the ALJ’s previous order dismissing the claim with prejudice. Our reasoning for that result is set forth in that order and we are unpersuaded to reconsider the order.
The respondents next argue that the modest amount of the penalty imposed is grossly disproportionate to the harm suffered by the respondents and that the ALJ abused her discretion in not imposing greater penalties. Because the ALJ’s authority is discretionary, we may not disturb the ALJ’s determination of the amount of the penalty to be imposed in the absence of fraud or an abuse of discretion See Associated Business Products v. Industrial Claim Appeals
Office, 126 P.3d 323 (Colo. App. 2005); Hall v. Home Furniture Co., 724 P.2d 94 (Colo. App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo. App. 1983). There is no assertion of fraud in this case. The legal standard for review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ’s determination, the ALJ’s order “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). The discretionary nature of the ALJ’s determination implies that she may consider a wide variety of factors. Aligaze v. Colorado Cab Co/Veolio, W.C. No. 4-705-940 (April 29, 2009).
Here, the ALJ concluded that statutory penalties were warranted based upon the claimant’s failure or refusal to attend the respondents’ IME and the claimant’s failure to answer the respondents’ interrogatories in a timely manner See § 8-43-304(1), C.R.S. (ALJ may impose penalties of up to five hundred dollars per day (since amended to one thousand dollars per day) when an individual fails, neglects or refuses to obey any lawful order made by the panel or director or violates the Act or a rule of procedure). The ALJ also found that the claimant presented no objectively reasonable explanation for his conduct in failing to comply with the discovery orders, thus warranting statutory penalties. However, in imposing penalties near the statutory minimum, we presume the ALJ was persuaded by the claimant’s argument that the respondents sustained little, if any, harm from the violations, since they were obligated under the statute to admit for the authorized treating physician’s impairment ratings or to obtain a DIME. Under these circumstances, we cannot state that the ALJ’s order exceeds the bounds of reason and we therefore affirm the imposition of statutory penalties.
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IT IS THEREFORE ORDERED that the ALJ’s order dated September 22, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
JIMMIE GARRETT, 3626 BRADY BLVD, COLORADO SPRINGS, CO, 80909 (Claimant).
MCNELLY CONSTRUCTION COMPANY, INC., Attn: MS DANNIELLE HINTZ, 2309 RAND AVENUE, COLORADO SPRINGS, CO, 80906 (Employer).
AMERICAN COMPENSATION INSURANCE CO., Attn: MR SHANE CORNELL, C/O: RTW, INC., P O BOX 390327, MINNEAPOLIS, MN, 55439-0327 (Insurer).
STEVEN U MULLENS, PC, Attn: RICHARD M. LAMPHERE, ESQ., P O BOX 2940, COLORADO SPRINGS, CO, 80901-2940 (For Claimant).
THOMAS POLLART MILLER LLC, Attn: DOUGLAS A THOMAS, ESQ/KAREN A LINDEMAN, ESQ, 5600 S QUEBEC STREET, SUITE 220-A, GREENWOOD VILLAGE, CO, 80111 (For Respondents).
LAW OFFICE OF WILLIAM ALEXANDER, JR., PC, Attn: WILLIAM A ALEXANDER JR., ESQ., 3055 AUSTIN BLUFFS PKWY, SUITE B, COLORADO SPRINGS, CO, 80918 (Other Party).
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