W.C. No. 4-496-527Industrial Claim Appeals Office.
May 19, 2003
FINAL ORDER
The respondents and the claimant separately petitioned for review of an order of Administrative Law Judge Jones (ALJ) which awarded temporary disability benefits and denied the claimant’s request for penalties. We affirm the award of temporary disability benefits through December 17, 2001, set aside the remainder of the order and remand for entry of a new order.
In October 2000 the claimant suffered compensable injuries to his neck, hand and shoulder which were treated by Dr. Quick. On a referral from Dr. Quick, the claimant received additional treatment from the Woodridge Orthopaedic and Spine Center (Woodridge). In July 2001 the claimant underwent cervical surgery by Dr. O’Brien of Woodridge. The relationship between the claimant and Dr. O’Brien later deteriorated. Consequently, when the claimant returned to Woodridge for a follow up examination on November 13 he was seen by Dr. Enguidanos, who released the claimant to regular employment.
Based on the opinions of Dr. Enguidanos, the respondents filed a General Admission of Liability dated November 27, 2001, which terminated temporary disability benefits effective November 13.
The claimant returned to a lower paying job at King Soopers commencing February 4, 2002. The claimant resigned on March 16, 2002, due to neck pain. On April 28 the claimant began part-time work which paid less than his pre-injury wage. Dr. Quick placed the claimant at maximum medical improvement on May 28, 2002.
The ALJ determined Dr. Enguidanos’ November 13, 2001 release was ineffective to terminate temporary disability benefits because he was not “the attending physician” within the meaning of § 8-42-105(3)(c), C.R.S. 2002. Instead, the ALJ found Dr. Quick is “the attending physician” and, Dr. Quick did not release the claimant to regular employment. Therefore, the ALJ ordered the respondents to pay temporary disability benefits from November 14, 2001 to May 28, 2002.
The ALJ also found the respondents’ unilateral termination of temporary disability benefits effective November 13 violated the Rules of Procedure, Part IX(C)(1)(b), 7 Code Colo. 1101-3. However, the ALJ determined the respondents had a reasonable basis to conclude that Dr. Enguidanos was an “attending physician.” Therefore, the ALJ denied the claimant’s request for penalties under § 8-43-304(1), C.R.S. 2002.
I.
On review the respondents contend the ALJ erred in finding Dr. Enguidanos’ release was legally insufficient to terminate temporary disability benefits effective November 13, 2001. We disagree.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2002. Once established, benefits continue until the respondents prove grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Section 8-42-105(3)(c) provides that temporary total disability benefits terminate when “the attending physician gives the employee a written release to return to regular employment.” The courts have held that the term ” attending physician,” as used in § 8-42-105(3)(c), means a physician within the chain of authorization who takes care of the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677
(Colo.App. 1997). The Popke court added that although the claimant may have multiple attending physicians, the statute do not authorize a release by “any” attending physician. Rather, a release to return to regular employment is not effective unless it is issued by “the attending physician.”
The identity of “the” attending physician is a question of fact for determination by the ALJ. Popke v. Industrial Claim Appeals Office, supra. The Popke court did not enumerate a definitive set of factors to be considered by the ALJ, it suggested that the ALJ might consider the identity of the initial treating physicians, the length of time the claimant treated with a particular physician, and whether a release to regular employment was approved by the initial treating physician. Of course, these criteria were a product of the fact-pattern in the Popke
case, and apparently not meant to be exclusive.
We must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, as well as the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
As we understand the ALJ’s order, she determined the claimant had multiple attending physicians. However, the ALJ found that Dr. Enguidanos is not “the attending physician” for purposes of §8-42-105(3)(c).
The respondents’ arguments notwithstanding, the ALJ’s determination is supported by substantial evidence in the record and, therefore, must be upheld on review. Section 8-43-301(8). The record contains evidence Dr. Enguidanos only treated the claimant on November 13, spent only 3 minutes with the claimant, did not conduct a physical examination and only saw the claimant because the claimant’s relationship with Dr. O’Brien was strained. In contrast, Dr. Quick treated the claimant from 2000 to 2001 and thereafter Dr. Quick continued to monitor the claimant’s ongoing treatment and medications.
Moreover, the record supports the ALJ’s finding that Dr. Quick did not release the claimant to regular employment as of November 13. Consequently, the ALJ did not err in finding the respondents failed to prove grounds for the termination of temporary disability benefits effective November 13.
Under these circumstances, we do not consider the claimant’s contention that Dr. Enguidanos’ opinions are legally ineffective to terminate benefits because he did not provide a copy of the November 13 release. Similarly we need not address the respondents’ contention that this argument was waived.
II.
However, Dr. O’Brien issued a medical report dated December 18, 2001 which released the claimant to regular employment. It is undisputed Dr. O’Brien is an authorized treating physician who has attended the claimant for treatment of the industrial injury. Consequently, the respondents contend that temporary disability benefits terminated December 18, 2001. We conclude the ALJ’s findings are insufficient to permit appellate review of the respondents’ contention and, therefore, we remand the matter for additional findings.
Although the ALJ acknowledged Dr. O’Brien’s December 18 report and found Dr. O’Brien is an attending physician, she did not make any findings of fact concerning the respondents’ contention that Dr. O’Brien was “the” attending physician as of December 18 for purposes of §8-42-105(3)(c). Under these circumstances, the ALJ’s findings are insufficient to support the award of temporary disability benefits after December 17, and the matter must be remanded to the ALJ for additional findings and a new order concerning the respondents’ liability for temporary disability benefits after December 17.
In view of our remand, it is premature to consider the respondents’ further contention that temporary disability benefits terminated February 2, 2002 when the claimant obtained employment at King Soopers and suffered an intervening injury.
III.
For his part, the claimant contends the ALJ erred in failing to award interest on past due temporary disability benefits. We agree.
Section 8-43-410 C.R.S. 2002, requires the respondent to pay interest at the rate of eight percent per annum upon all sums not paid “upon the date fixed by the award” of the ALJ for payment. Further, interest is a statutory right which automatically applies to an award without any action by the claimant. T T Love land Chinchilla Ranch, Inc. v. Bourn, 178 Colo. 65, 495 P.2d 546 (1972); Beatrice Food Co. Inc., v. Padilla, 747 P.2d 685 (Colo.App. 1987). However, upon application and satisfactory showing an ALJ may relieve the respondents of the payment of interest.
Here, the respondents do not assert any right to relief from interest. Rather, the respondents argue the ALJ’s order implicitly awards statutory interest.
Under these circumstances, the claimant is entitled to an award of interest. Therefore, on remand the ALJ shall award interest as provided by § 8-43-410 and consistent with her award of temporary disability benefits.
IV.
The claimant also contests the ALJ’s failure to impose penalties for the respondents’ violation of Rule IX. We conclude the ALJ’s findings are insufficient to permit appellate review and, therefore, we remand the matter for additional findings and the entry of a new order. See §8-43-301(8); Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761
(1969)
Section 8-43-304(1) allows an ALJ to impose penalties up to $500 per day against “any employer or insurer, or any officer or agent of either, or any employee, or any other person who fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, or fails to comply with a lawful order. The court has 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). However, the violation of a procedural rule does not compel the imposition of penalties unless the violation was unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1437, March 13, 2003).
Rule IX(C)(1)(b) provides that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability form which is accompanied by;
“A medical report from the authorized treating physician who has provided the primary care stating the claimant is able to return to regular employment.” (Emphasis added).
The ALJ determined the respondents’ violation of Rule IX did not warrant the imposition of penalties because the insurer had a reasonable basis to conclude that Dr. Enguidanos was “an attending physician.” (Conclusions of Law 7). However, Rule IX(C)(1)(b) requires the admission be accompanied by a report from a physician who “has provided the primary care.” Therefore, the ALJ’s finding that the respondents reasonably believed Dr. Enguidanos was an “attending” physician is insufficient to permit appellate review.
On remand the ALJ shall redetermine whether the respondents’ violation of Rule IX was unreasonable. Specifically, the ALJ shall determine whether the respondents reasonably believed Dr. Enguidanos’ November 13 report was the report of the primary care physician. Based on that determination the ALJ shall enter a new order concerning the respondents’ liability for penalties under § 8-43-304(1). See Rael v. Debourgh Manufacturing Co., W.C. No. 4-115-551 (February 27, 1998); Marple v. Saint Joseph Hospital, W.C. No. 3-966-344 (September 15, 1995) (the imposition of penalties under § 8-43-304(1) is mandatory if there has been a violation of the Act and the violation was not reasonable).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 25, 2002, is set aside insofar as the ALJ denied the claim for penalties and awarded temporary disability benefits after December 17, 2001, and the matter is remanded to the ALJ for entry of a new order on these issues which is consistent with the views expressed herein. The ALJ shall also award interest as provided by § 8-43-410. In all other respects the ALJ’s order 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 May 19, 2003 to the following parties:
Richard Herb, 1932 Ance St., Strasburg, CO 80136
Dawn Manning, Mariner Post Acute Network, One Ravinia, #1500, Atlanta, GA 30346
Mariner Post Acute Network, 6005 S. Holly St., Littleton, CO 80121-3460
American Home Assurance, c/o Tina Gustafson, Adjuster, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Michael D. Brown, Esq., 8089 Pierson Court, Arvada, CO 80005 (For Claimant)
Dennis Gunther, Esq., 4800 Wadsworth Blvd., #118, Wheat Ridge, CO 80033 (For Claimant)
W. Berkeley Mann, Jr., Esq. and Margaret R. Curry, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado