W.C. No. 4-382-985.Industrial Claim Appeals Office.
November 17, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ), insofar as the ALJ denied her requests for penalties, costs, and attorney fees. We affirm.
The claimant sustained a compensable occupational disease in 1998. In an order dated March 17, 2003, ALJ Felter awarded permanent partial disability benefits and medical benefits after maximum medical improvement [see Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988)] consisting of Botox injections recommended by Dr. Gibson. The respondents filed an amended Final Admission of Liability (FAL) which admitted liability for future medical benefits consistent with ALJ Felter’s award. The claimant objected to the FAL but took no other action.
On December 10, 2003, the respondents moved to close the claim on grounds the claimant failed to take any action to prosecute the claim for more than six months. The Director of the Division of Workers’ Compensation then issued an order requiring the claimant to show cause why the respondents’ motion should not be granted.
In response to the show cause order, the claimant alleged she had been prosecuting the claim by pursing medical treatment and attached a December 18, 2003 report from Dr. Gibson which recommended the claimant proceed with Botox injections. The claimant also applied for a hearing on the issue of medical benefits and requested the imposition of penalties under § 8-43-304(1), C.R.S. 2004. Specifically, the claimant alleged the respondents’ motion to close violated ALJ Felter’s order, and was an impermissible attempt to substitute closure for a petition to review or a petition to reopen. The claimant also requested an award of costs and attorney fees to compensate the claimant for the inconvenience of having to litigate an issue that was “closed” and not ripe for adjudication.
Upon receipt of the December 18 medical report of Dr. Gibson the respondents withdrew their request to close the claim and authorized the Botox injections. The respondents then endorsed their own penalty requests for hearing.
The ALJ found Dr. Gibson’s recommendation for three sets of Botox injections and eight sessions of massage therapy was reasonable and necessary Grover medical treatment. However, the ALJ determined the claimant failed to prove that respondents’ filing of the motion to close violated any lawful order, statute or rule. Rather, the ALJ determined the claimant sought no Grover-type treatment for a period in excess of six months after ALJ Felter’s order, and then failed to provide the respondents a copy of Dr. Gibson’s December 18 report until January 29, 2004. Therefore, the ALJ denied the claimant’s requests for penalties, costs, and attorney fees. The ALJ also denied the respondents’ penalty requests.
On appeal the claimant renews the arguments she made before the ALJ concerning penalties, costs, and attorney fees. However, the claimant did not file a brief in support of the petition to review.
Contrary to the respondents’ arguments, the claimant’s failure to file a brief in support of the petition to review does not compel a conclusion the claimant waived her arguments. See Jiminez v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2283, September 11, 2003). However, without a brief the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Initially, we note that the claimant’s Designation of Record includes the “complete” files of the Division of Workers’ Compensation and Division of Administrative Hearings. The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and there is no indication in the record that the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See
Tr. p. 8; 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.
Section 8-43-304(1), C.R.S. 2004, authorizes the imposition of penalties up to $500 per day where the respondents violate a statute, rule, or lawful order of an ALJ. Holliday v. Bestop Inc., 23 P.3d 700
(Colo. 2001). 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 any provision of the Workers’ Compensation Act or rule. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If the ALJ finds a violation, penalties may be imposed only if the ALJ finds the violation was objectively unreasonable. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). Furthermore, §8-43-304(4), C.R.S. 2004, provides that if the violation is cured within twenty days of an application for hearing on the issue of penalties, no penalty may be imposed in the absence of “clear and convincing evidence” that the violator “knew or reasonably should have known” of the violation.
Admittedly, neither party appealed the March 13 order of ALJ Felter and therefore, the claimant’s entitlement to a general award of Grover
medical benefits was resolved by that order. See Burke v. Industrial Claim Appeals Office, 905 P. 2d 1 (Colo.App. 1994). However, the ALJ properly recognized that the respondents retain the right to contest liability for specific medical treatment on grounds such treatment is unnecessary, unauthorized or unrelated to the industrial injury. Therefore, the issue of Grover medical benefits was not “closed,” and no petition to reopen was necessary for the respondents to dispute their liability for specific treatment.
Contrary to the claimant’s further contention, the respondents did not attempt to have the award invalidated on review. Rather, the respondents admitted liability consistent with the award. Consequently, we agree with the ALJ that the record fails to support the claimant’s contention that the respondents attempted to substitute the motion to close for a petition to review or a petition to reopen. It necessarily follows that we do not construe the motion to close as a belated petition to review the order of ALJ Felter. Therefore, we reject the claimant’s contention that the filing of the motion to close warrants an award of costs or attorney fees under § 8-43-301(14), C.R.S. 2004 (concerning petition to review that is not well grounded in fact or existing law).
Furthermore, nothing in ALJ Felter’s order precluded the respondents from availing themselves of the Rules of Procedure, Part X(A)(2), 7 Code Colo. Reg. 1101-3 at 37 (1998), which provides that “any of the parties” may file a petition to close the claim for lack of prosecution when there has been no action in furtherance of the claim for at least six months See also § 8-43-207(1)(n), C.R.S. 2004 (Director may dismiss a claim where there has been no activity for a period of at least six months). Therefore, the ALJ did not err in finding that the respondents’ filing of the motion to close did not violate any statute, rule, or lawful order. We also note that it was the claimant, not the respondents, who applied for a hearing on the issue of medical benefits. It follows the ALJ did not err in failing to find a violation of § 8-43-211(d), C.R.S. 2004, which requires the assessment of costs and attorney fees against any person who requests a hearing on issues not ripe for adjudication.
The claimant’s remaining arguments are not persuasive. We agree with the ALJ’s reasoning and adopt it as our own.
Finally, we know of no authority requiring the ALJ to expressly reserve issues not addressed by the order. See Collett v. Pacesetter Corporation, W.C. No. 4-414-586 (May 6, 2002), aff’d., Collett v. Industrial Claim Appeals Office, Colo. App. No. 02CA1045, January 30, 2003 (not selected for publication). Neither are we able to find any support in the record for the claimant’s assertion that she requested the ALJ expressly reserve all issues not specifically resolved for future determination, and the claimant has not explained what issues remain to be resolved. Consequently, we cannot say the ALJ erred in failing to include a reservation clause in the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 3, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Saba Hailemichael, Denver, CO, OEA, Inc., Denver, CO, Ace Property
Casualty, c/o Sandra Shefman, ACE/ESIS, Portland, OR, Chris L. Ingold, Esq., Denver, CO, (For Claimant).
Tiffany L. Scully, Esq., Denver, CO, (For Respondents).