W.C. No. 4-268-596Industrial Claim Appeals Office.
November 13, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) insofar as the ALJ denied his requests for temporary total disability benefits and penalties. We affirm the order denying penalties, set aside the order concerning temporary disability benefits and remand the matter to the ALJ for the entry of a new order.
On September 27, 1995, the claimant suffered admitted injuries, including a closed head injury, when he fell from a crane while working for the respondent-employer. The respondents admitted liability for temporary total disability benefits through December 4, 1995. At that time, the respondents offered the claimant modified employment consisting of sorting nuts and bolts, and acting as a mechanic’s helper. The physical requirements of the job included standing, sitting, and lifting no more than ten pounds. The modified job was approved by the attending physician, Dr. Hemler. However, the modified employment paid less than the claimant’s regular employment, and therefore, the respondents admitted liability for temporary partial disability benefits.
The claimant testified that after performing the modified work for several hours he became dizzy and went home. He stated that he did not return to work because he lacked transportation. The ALJ determined that the modified work was within the claimant’s medical restrictions and that the respondent-employer had made transportation arrangements for the claimant. Therefore, the ALJ determined that the claimant was at fault for the loss of the modified employment.
The claimant subsequently began working at Radio Shack as an assistant manager. The claimant testified that he voluntarily resigned from that employment on April 1, 1996, because due to the effects of the industrial injuries, he was physically unable to work with people. However, the ALJ found no medical evidence that the claimant was restricted from performing the work at Radio Shack. Therefore, the ALJ denied the claimant’s request for temporary total disability benefits between April 1, 1996 and September 23, 1996, the date the respondents voluntarily reinstated benefits.
The claimant also contended that the Colorado Compensation Insurance Authority (CCIA) failed timely to provide prescribed treatment including an MRI of his low back recommended by Dr. Jay, a Liss Body Stimulator, and reimbursement for medically related travel expenses. Therefore, the claimant requested the imposition of penalties at the rate of $100 per day. However, the ALJ was not persuaded that there was an unreasonable delay. Consequently, the ALJ denied the request for penalties.
I.
On review, the claimant contends that the ALJ erred in refusing to impose penalties in connection with the CCIA’s delay or denial of medical benefits. Further, the claimant contends that the CCIA is also subject to penalties for failing to comply with the Rules of Procedure Part XVI and XVIII(E), Code Colo. Reg. 1101-3 at pp. 70-85. We disagree.
A.
Rule XVI(J) sets forth the procedure to be followed for the pre-authorization of medical treatment, Rule XVI(N) provides that the failure to comply with Rule XVI shall subject the violator to penalties. Rule XVII sets forth the procedure to be followed if the insurer questions the reasonableness and necessity of treatment.
At hearing, and in response to the ALJ’s request for clarification of the penalty issue, the claimant’s attorney stated that the claimant was seeking penalties in connection with the CCIA’s violation of Rule XVI(J). (Tr. pp. 65-67). However, the claimant has abandoned this argument on appeal. Instead, the claimant provided a copy of XVI(N), and asserts that this is the portion of Rule XVI which is relevant to his appeal. See
(Petition to Review, January 23, 1997, pp. 8-9; Opening Brief of Claimant, September 25, 1997). Under these circumstances we do need not consider whether the CCIA violated Rule XVI(J).
Furthermore, we agree with the respondents that the argument that the CCIA violated Rule XVII was not raised before the ALJ See (Tr. pp. 4-18, 66-67, 75-76; Application for Hearing dated July 26, 1996; Order dated September 19, 1996; Claimant’s “Amended Motion” to add penalties September 25, 1996). Therefore, we shall not address this argument for the first time on appeal See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
B.
Next, we note that insofar as the claimant requested penalties at a rate of $100 per day, the claimant implicitly sought an order imposing penalties under the general provisions of § 8-43-304(1), C.R.S. 1997. However, in Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997), cert. denied, September 15, 1997, the court held that, where the gravamen of the penalty request is the failure to provide medical benefits, the specific penalty provisions in §8-43-401(2)(a), C.R.S. 1997, supersede the general penalty provisions of § 8-43-304(1). Section 8-43-401(2)(a) provides that:
“If any insurer or self-insured employer willfully
delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld benefits.” (Emphasis added.)
Here, it is undisputed that the claimant sought penalties in connection with the CCIA’s delay or denial of medical benefits See Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988) (mileage expenses incurred incidental to obtaining prescribed treatment are compensable medical benefits.). Therefore, the gravamen of the claimant’s penalty request falls within the provisions of §8-43-401(2)(a).
In the context of workers’ compensation, the term “willful” has been defined to mean acting “with deliberate intent” and not the result of thoughtfulness, forgetfulness, or mere negligence Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946); Sears v. Penrose Hospital, supra. The statute also limits the imposition of penalties to “wrongfully” withheld medical benefits. Consequently, to obtain penalties under §8-43-401(2) the claimant must prove that the CCIA’s delay or denial of medical benefits was both deliberate and unjust Sears v. Penrose Hospital, supra.
It necessarily follows that § 8-43-401(2)(a) does not impose a strict liability standard for the failure timely to pay medical benefits. Instead, § 8-43-401(2)(a) only subjects the insurer to penalties where there is no legitimate legal or factual controversy concerning whether the particular medical benefits are reasonably necessary to treat the industrial injury Cf. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. No. 96CA0679, February 6, 1997), cert. denied, September 15, 1997.
With regard to the CCIA’s reimbursement of the claimant’s taxicab fares to medical appointments, the ALJ found that the CCIA reimbursed the claimant as soon as the claimant provided the information requested by the CCIA to process the reimbursement claim. (Finding of Fact 10). Furthermore, the ALJ found that the CCIA denied the Liss Body Stimulator and MRI based on recommendations from their in house physicians and nurse that these modalities were not reasonably necessary to the treat the industrial injuries. (Finding of Fact 11). These findings reflect the ALJ’s implicit determination that the CCIA did not unjustly delay or deny these medical benefits but sought to advance plausible legal theories grounded in law and evidence. Consequently, the ALJ did not err in refusing to impose penalties under the applicable statute.
II.
The claimant also contends that due to the effects of the injury he was physically unable to work after he left his employment at the Radio Shack. Therefore, he contends that the ALJ erroneously denied his claim for temporary total disability benefits between April 1, 1996 and September 23, 1996. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the claimant’s argument.
Section 8-42-105(3)(b) provides that temporary total disability benefits terminate if the claimant returns to modified employment. However, PDM Molding, Inc., v. Stanberg, supra, stands for the proposition that a disabled worker who is terminated for cause from modified employment may be entitled to receive temporary total disability benefits in connection with the subsequent wage loss. When confronted with the claimant’s loss of employment, the ALJ must make a two step analysis. First, the ALJ must determine whether the claimant was “at fault” for the termination from employment. If the ALJ determines that the claimant was at fault for the termination, the ALJ must then determine whether the claimant sustained his burden to reestablish a causal connection between the industrial injury and his wage loss. In this regard, the claimant need not prove that the industrial disability was the “sole cause” of his wage loss after the termination. In fact, the claimant is only precluded from receiving further temporary disability benefits if the industrial disability played “no part” in the claimant’s wage loss. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). The claimant must only prove that the industrial disability contributed “to some degree” to his wage loss after the termination from employment. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496
(Colo.App. 1995), rev’d on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996).
In this case, the ALJ found that the claimant was “at fault” for the termination of his modified employment with the respondent-employer and Radio Shack. However, the ALJ made no findings of fact concerning whether the claimant’s wage loss following the termination of his employment at Radio Shack was “to some degree” the result of the industrial injury.
In a report dated May 16, 1996, Dr. Jay opined that the claimant is suffering from a “complex seizure disorder” which includes chronic post-traumatic tension type headaches, “episodic affective dyscontrol” with rage attacks, depression and anxiety. In a later report dated June 10, 1996, Dr. Jay diagnosed the claimant with “Psychosocial and environmental problems with decrease in occupational functioning.” Similarly, Dr. Reinhard diagnosed the claimant with an “organic mood disorder,” and cognitive complaints due to anxiety and irritability. Dr. Reinhard opined that these conditions are related to the injury. (Reinhard June 29, 1996). Moreover, on November 1, 1996, Donald W. Receveur Psy. D., made a similar diagnosis. He added that the claimant’s cognitive impairment from the closed head injury includes lowered impulse control. Based upon these problems he opined that the claimant should not have tried to return to work after the accident and is temporarily totally disabled.
The claimant stated that he has not worked since April 1, 1996, and has been unable to work since that date due to severe shoulder pain, memory problems, and “rage” control problems resulting from the industrial injury. (Tr. pp. 23, 35, 38). Furthermore, he stated that he has been unsuccessful in starting his own business because he has been unable effectively to operate the computer he is using for the business. (Tr. pp. 23-24).
Accordingly, the record contains some evidence which, if credited, might support a finding that the claimant’s industrial disability contributed, “to some degree” to his wage loss between April 1, 1996 and September 23, 1996. Under these circumstances, we must remand the matter to the ALJ for additional findings and the entry of a new order which reflects his application of the principles established in PDM Molding, Inc. v. Stanberg, supra.
IT IS THEREFORE, ORDERED that the ALJ’s order dated January 6, 1996, is set aside insofar as it denies temporary total disability benefits after April 1, 1996, and the matter is remanded to the ALJ for the entry of a new order on this issue which is consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order dated January 6, 1997, is affirmed in all other respects.
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. 1997.
Copies of this decision were mailed November 13, 1997
to the following parties:
Michael G. Powers, 2609 S. Patton Ct., Denver, CO 80219-5715
David Bell, President, A Skyhook Co., Inc., 5075 Tabor Street, Westminster, CO 80233
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For the Claimant)
Stacy J. Tarler, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
BY: __________________________