W.C. No. 4-108-582Industrial Claim Appeals Office.
October 11, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ), dated December 15, 1994, which awarded medical and temporary disability benefits. We affirm the award of medical benefits, set aside the award of temporary disability benefits and remand for the entry of a new order.
The ALJ previously determined that Aero Mayflower Transit, Inc., was the statutory employer of the claimant when he sustained injuries during an automobile accident on March 13, 1991. The respondents appealed, but subsequently withdrew the appeal and admitted liability for temporary total disability and medical benefits. However, the claimant contested the respondents’ calculation of his average weekly wage, and the respondents’ failure to admit liability for prior medical treatment which was paid by North America Life and Casualty (NALAC) totalling $83,543.96.
In her December 15 order, the ALJ required the respondents to pay the claimant $83,543.96. In so doing, the ALJ found that the NALAC accident policy contained a subrogation clause which required the claimant to reimburse NALAC in the event he received workers’ compensation benefits. The ALJ also credited testimony that NALAC intended to enforce that clause. Further, the ALJ determined the claimant’s average weekly wage and ordered that “benefits be paid in accordance with this amount.”
I.
On appeal, the respondents first contest the ALJ’s order to pay the claimant $83,543.96. The respondents contend that the order adjudicates a subrogation claim of a non-party insurer, and thus, exceeds the ALJ’s jurisdiction and violates their due process rights. We reject these arguments.
Regardless of the references by the parties and the ALJ to a “subrogation” clause in the NALAC policy, there was no “subrogation” claim before the ALJ. See § 8-41-203(1), C.R.S. (1990 Cum. Supp.); Jordan v. Industrial Claim Appeals Office, 914 P.2d 394 (Colo.App. 1995) (workers’ compensation insurer subrogated to the rights of the claimant against the third party tort feasor). Nor does the ALJ’s order purport to adjudicate a “subrogation” claim by the NALAC. Rather, the issue adjudicated by the ALJ was the respondents’ liability to the claimant for medical treatment. Tr. p. 37; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds at 783 P.2d 269
(1989) (the ALJ’s oral findings may be considered to interpret the written order). Consequently, we do not address the respondents’ argument that they were denied an opportunity to litigate their affirmative defenses to the NALAC’s “subrogation” claim.
The Workers’ Compensation Act (Act) requires the employer to furnish medical, surgical and hospital treatment as may reasonably be needed to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.). Here, the parties endorsed the issue of “reasonably necessary” medical benefits, and the respondents were aware that the claimant disputed the respondents’ failure to admit liability for the medical expenses totalling $83, 543.96. Tr. pp. 35-37. Therefore, the ALJ had jurisdiction over the disputed issue and the respondents’ due process rights were not implicated. Sectio s 8-43-201, 8-43-203(2), 8-43-207(1)(o), C.R.S. (1995 Cum. Supp.); HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990).
Further, the respondents’ do not dispute the ALJ’s implicit determination that the medical treatment which was previously paid by NALAC was reasonably necessary to cure or relieve the effects of the injury. Consequently, as a matter of law, the ALJ’s findings of fact compel the conclusion that the respondents are liable for the cost of this medical treatment. Therefore, the ALJ’s findings concerning the NALAC policy are harmless error and will be disregarded. Section 8-43-310 C.R.S. (1995 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded); Skinner v. Industrial Commission, 152 Colo. 97, 381 P.2d 253 (1963) (proper to affirm if correct result reached even if reasoning incorrect).
Our conclusion necessarily rejects respondents’ contention that they are only liable for unpaid medical expenses. We know of no authority and the respondents cite none in support of this proposition. Nor do we find anything in the Act which suggests that the General Assembly intended a workers’ compensation carrier to escape liability for medical treatment where the treatment is paid for by the claimant or another insurer prior to the determination of the carrier’s liability. In fact, workers’ compensation carriers have repeatedly been ordered to reimburse claimants for medical expenses. Mosley v. ARA Food Services, W.C. No. 3-933-364, May 21, 1991; Shull v. Dig A Well Service, W.C. No. 3-055-241, May 28, 1991. Carriers have also been ordered to reimburse other insurance carriers for compensation previously paid to the claimant. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843, 845 (Colo.App. 1986); Sanchez v. Central Bank,
W.C. Nos. 3-912-325, 3-973-440; 4-102-477, January 9, 1995.
Moreover, the respondents’ theory is inconsistent with § 8-42-101(4) which states that:
“Once there has been an admission of liability or the entry of a final order finding that an employer or insurance carrier is liable for the payment of an employee’s medical costs or fees, a medical provider shall under no circumstances seek to recover such costs or fees from the employee.”
Consequently, we agree with the ALJ’s conclusion that the respondents are liable for medical expenses which are related to the claimant’s injury regardless of whether the claimant paid the expenses out of his own pocket or the expenses were paid by NALAC.
II.
Next, the respondents contend that the ALJ erroneously calculated the claimant’s average weekly wages based on the combined earnings of the claimant and the claimant’s wife. Specifically, the respondents contend that there is not substantial evidence in the record to support the ALJ’s determination that the payments by the respondent-employer to the claimant represent the claimant’s wages only. We agree, and remand for additional findings.
In so doing, we reject the claimant’s contention that we lack jurisdiction to consider this and the respondents’ remaining appellate arguments on grounds that the respondents’ Petition For Review failed to “set forth in detail the particular errors and objections,” as required by § 8-43-301(2), C.R.S. (1994 Cum. Supp.). The failure to provide a detailed list of alleged errors is not a jurisdictional defect. Oxford Chemicals Inc., v. Richardson, 782 P.2d 845. The respondents’ Petition alleges that the ALJ’s findings of fact are not supported by the evidence, that the findings do not support the order and that the order is not supported by the applicable law. These allegations sufficiently set forth the basis for the respondents’ dissatisfaction with the ALJ’s order, and thus, we elect to exercise our authority to consider the respondents arguments. Oxford Chemicals Inc., v. Richardson, supra.
There is a distinction between the terms “no evidence” and “no credible evidence.” Accordingly, where the ALJ finds that there is “no evidence” to support a particular proposition, we are not free to presume that the ALJ found “no credible evidence” to support the proposition. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
Here, the ALJ found that the claimant’s rate of compensation from the respondent-employer was based on the number of miles driven. The ALJ found “no evidence as to whether or not any of the miles in the trip reports” submitted by the claimant to the respondent-employer were driven by the claimant’s wife. The ALJ also found “absolutely no evidence” that “some of the monies paid constituted wages belonging to [the claimant’s] wife.” Finding of Fact 4.
However, the claimant admitted that he and his wife were “team” drivers, and that the “logs” were for both he and his wife. Tr. p. 18, line 4. The claimant also testified that the income reported in the “Trip Report” is for two people. Tr. p. 18, line 11.
Because this evidence, if credited, might support a finding that some of the monies paid to the claimant represented his wife’s wages as a “team” driver, the record does not support the ALJ’s finding of “no evidence” on the issue. Moreover, we are unable to ascertain how the ALJ would have assessed the sufficiency and probative value of the evidence, had she been aware of the claimant’s testimony. Consequently, we must remand the case for the ALJ to reconsider the evidence and enter a new order concerning the claimant’s average weekly wage.
III.
For purposes of our remand, we also note the parties’ agreement that the ALJ’s order for the payment of “benefits” pertains to the payment of “temporary total disability” benefits. In this regard, the respondents contend that the order erroneously fails to “credit” them for wages earned by the claimant after March 13. We agree with the claimant that the respondents are not entitled to a “credit” or “offset” for wages earned by the claimant subsequent to March 13, 1991. See Smith v. James Cable Partners, W.C. No. 4-113-449, June 24, 1994; Tijerina v. Murdoff Homes, Inc., W.C. No. 3-949-098, April 26, 1994. Nevertheless, we agree with the respondents that the award must be set aside and remanded.
Under former § 8-42-105 C.R.S. (1990 Cum. Supp.) which is applicable here, temporary total disability benefits are payable to a claimant whose temporary disability from an industrial injury is total. In contrast, a claimant whose temporary disability is less than total is entitled to temporary partial disability benefits under former § 8-42-106 C.R.S. (1990 Cum. Supp.), at a rate of sixty-six and two thirds percent of the “impairment” of his earning capacity. A claimant cannot be temporarily partially disabled and temporarily totally disabled as the same time. Therefore, where the claimant’s temporary disability is less than total, the claimant is limited to an award of temporary partial disability benefits. McNulty v. City of Louisville, W.C. No. 4-121-042, June 15, 1994.
Here, the ALJ found, and it is undisputed that after the industrial injury, the claimant worked for a construction company and was paid $2,760. The ALJ also found that the claimant worked at a post office where he earned $867.03. The ALJ’s findings of fact necessarily reflect a determination that the claimant was less than totally disabled during the period he worked for the construction company and the post office. Therefore, the ALJ erred insofar as she ordered the respondents to pay temporary total disability benefits for these periods, and the ALJ must enter a new order which awards benefits in accordance with sections 8-42-105 and 8-42-106.
Lastly, we reject the claimant’s request for costs and attorney fees. Presumably, the claimant’s request is predicated on § 8-43-301(14), C.R.S. (1995 Cum. Supp.). However, this statutory language was enacted as part of Senate Bill 91-218, and is not applicable to injuries arising prior to July 1, 1991. See 1991 Colo. Sess. Laws, ch. 219 at 1322; Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Moreover, even if § 8-43-301(14) were applicable, we would not be inclined to award costs or attorney fees. In light of our disposition, we are not persuaded by the claimant’s assertion that the respondents’ appeal is “frivolous, groundless and vexatious.”
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 1994, is set aside insofar as it determines the claimant’s average weekly wage and orders the payment of temporary total disability benefits, and is remanded to the ALJ for a new order on these issues which is consistent with the views expressed herein. In all other respects, the ALJ’s 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 11, 1995 to the following parties:
Ellsworth Hoffman, 28581 Avenida Duquesa, Cathedral City, CA 92234-3712
Aero Mayflower Transit, Inc., Attn: P. Kevin Thompson, VP Risk Management, P.O. Box 107
Indianapolis, IN 46206-0107
Aero Mayflower Transit, Inc., Attn: Doug Meyer, Esq., P.O. Box 107
Indianapolis, IN 46206-0107
CIGNA Property and Casualty, P.O. Box 2941, Greenwood Village, CO 80150-0141
Pacific Employers Insurance Company, Attn: Bruce Burton, P.O. Box 911, Portland, OR 97207
Gordon J. Heuser, Esq., 3515 N. Chestnut St., Colorado Springs, CO 80907 (For the Claimant)
Daniel B. Stageman, Esq., 90 S. Cascade, #950, P.O. Box 1435, Colorado Springs, CO 80903
(For the Claimant)
Ronald Jaynes, Esq., 455 Sherman St., #210, Denver, CO 80203 (For the Respondents)
BY: _______________________