W.C. No. 4-492-570.Industrial Claim Appeals Office.
February 16, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ Henk) which determined the date of maximum medical improvement (MMI), denied permanent disability benefits, denied interest on medical benefit payments, and denied claims for several penalties. We set the order aside with respect to interest on medical benefits and otherwise affirm the order.
This case has a long and complicated procedural history. We summarize that history to the extent necessary to resolve the appeal.
The claimant sustained a compensable abdominal injury in January 2001. Later, the claimant asserted that he was entitled to medical benefits for treatment of a back condition allegedly related to the January injury. A hearing was held on April 11, 2002, and in an order dated June 6, 2002, ALJ Friend found the claimant failed to prove the back injury was caused by the industrial injury. Consequently, the claim for medical benefits associated with the back was denied. However, ALJ Friend awarded temporary total and temporary partial disability (TTDTPD) commencing January 25, 2001, and medical benefits for the abdominal injury. ALJ Friend also determined that American Employers Group (AEG) was the agent of insurer Virginia Surety (Virginia), and that AEG bound Virginia to a contract of compensation insurance on the date of the claimant’s injury. AEG was dismissed as a party to the claim because it was not an employer or insurer. The respondents appealed ALJ Friend’s order disputing whether a contract for insurance existed and whether the evidence supported the award of temporary disability benefits. The claimant did not appeal.
While the respondents’ appeal was pending, they sought a Division-sponsored independent medical examination (DIME) under the auspices of § 8-42-107(8)(b)(II), C.R.S. 2004, because no authorized treating physician had placed the claimant at MMI in 18 months. The claimant argued the DIME could not be conducted while the appeal was pending, but that argument was rejected by ALJ Friend in an order dated October 16, 2002.
Initially the DIME placed the claimant at MMI on September 1, 2002, with zero impairment. Later the DIME physician testified that he could not identify the source of the claimant’s back pain and could not associate it with the industrial injury. He then opined the claimant reached MMI on January 1, 2002, with no impairment.
On March 28, 2003, the respondents filed a Final Admission of Liability (FAL) consistent with the DIME physician’s January 2002 MMI date and zero percent rating. They also withdrew the pending petition to review ALJ Friend’ June 2002 order. In April 2003 the claimant filed an application for hearing on numerous issues including the date of MMI and consequent entitlement to temporary benefits, the “validity” of the DIME under §8-42-107(8)(b)(II), and overcoming the DIME physician’s opinions concerning MMI and impairment. The claimant also sought penalties on grounds the respondents sought a hearing on an “unripe issue” in violation of § 8-43-211(1)(d), C.R.S. 2004, penalties for filing a frivolous appeal from ALJ Friend’s June 2002 order, penalties for failure to pay medical and temporary disability benefits in accordance with the order, and penalties failure to pay interest in accordance with the order. The claimant also sought an award of interest on medical benefits which were allegedly not paid when due.
In an order dated February 3, 2004, ALJ Henk concluded the DIME was conducted in compliance with the procedures established by §8-42-107(8)(b)(II), and that the DIME physician’s opinion was that there was no connection between the industrial injury and the claimant’s back condition. Consequently, it was the DIME physician’s determination that the claimant reached MMI on January 1, 2002, with zero impairment. Further, ALJ Henk concluded the claimant failed to overcome the DIME physician’s determinations by clear and convincing evidence, and the claims for additional temporary disability benefits and for permanent disability benefits were thus denied.
ALJ Henk denied a penalty for Virginia Surety’s alleged failure to pay benefits in accordance with ALJ Friend’s June 6 order, because she found that Virginia Surety filed a valid appeal and was not obligated to pay benefits until it withdrew the appeal and filed the FAL in March 2003. ALJ Henk rejected the assertion that it was AEG, not Virginia Surety, which appealed citing our order of May 9, 2003, which held there was no legitimate dispute concerning the identity of the appealing party. ALJ Henk also rejected the claimant’s request for attorney fees and costs finding the claimant failed to prove the respondents’ appeal from ALJ Friend’s order was groundless or frivolous. Section 8-43-301(14), C.R.S. 2004. Next, ALJ Henk further found there was no late payment of interest because the respondents paid all interest due before the hearing, the date for “cure” of any violation was extended through the date of the hearing. ALJ Henk concluded the claimant failed to prove the respondents knew or should have known they were in violation of ALJ Friend’s order. Section 8-43-304(4), C.R.S. 2004. Finally, ALJ Henk denied the request for a penalty under § 8-43-211(1)(d), finding the claimant failed to prove the respondents requested a hearing on issues not ripe for adjudication.
ALJ Henk also found the respondents admitted liability for certain medical bills contained in Claimant’s Exhibit 2. However, ALJ Henk denied the claimant’s request that the respondents be ordered to pay interest on the unpaid medical bills. The ALJ concluded that under § 8-43-410(2), C.R.S. 2004, interest is not payable on medical expenses because “this section provides for interest on unpaid compensation not unpaid medical bills.”
The claimant filed a petition to review which contains certain specific allegations of error, as well as general assertions concerning the sufficiency of the evidence and the correctness of the ALJ’s application of the law to the facts. However, the claimant did not file a brief in support of the petition to review. Moreover, the claimant designated a transcript of the hearings which were held before ALJ Henk on October 16, 2003, and December 16, 2003. However, after numerous procedural steps, including an unsuccessful application for indigent status, the claimant failed to respond to an order to show cause why his request for a transcript should not be considered withdrawn. Consequently, there are no transcripts of the hearings before ALJ Henk.
As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, the appealing party bears the responsibility to produce a record sufficient to demonstrate error. Fleet v. Zwick, 944 P.2d 480 (Colo.App. 1999). An appellate tribunal need not search the record for evidence to support a factual proposition, nor search out legal authorities to support vague assertions that an error was committed. Raygor v. Board of County Commissioners, 21 P.3d 432, 439 (Colo.App. 2000). Finally, issues not raised on the appeal are considered to have been waived. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162
(Colo.App. 2002). All of these principles are embodied in the statutes and rules which govern the filing of appeals in workers’ compensation cases. Section 8-43-301(2) (petition to review should set forth in detail the errors and objections); Rule of Procedure VII (D)(1)(b) (c), 7 Code Colo. Reg. 1101-3 at 19 (petitioner’s brief should contain a statement of the issues presented together with supporting rationale, citations of authority and references to record).
I.
With these principles in mind, we consider the specific assertions of error contained in the claimant’s petition to review. The claimant first asserts that because the DIME physician “rated both the back condition and the abdominal condition” the “totality of the ratable injuries at MMI dictates what conditions justified ongoing temporary disability payments, and dictates what date should be used for MMI purposes.” The claimant also asserts that “ALJ Friend’s adjudication of the back condition as part of the work injury” should not bar relitigation of causation on “Division IME matters.” We perceive no error in the order.
The DIME physician’s findings concerning the date of MMI and the degree of medical impairment are binding on the parties unless overcome by clear and convincing evidence. Sections 8-42-107(8)(b) (III) (8)(c), C.R.S. 2004. Determining the cause or causes of the claimant’s medical conditions is an inherent part of determining MMI and the degree of impairment caused by the injury. Consequently, the DIME physician’s findings concerning causation are binding unless overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 190 (Colo.App. 2002).
If the DIME physician offers ambiguous or conflicting opinions concerning MMI or impairment, it is for the ALJ to resolve the ambiguity and determine the DIME physician’s true opinion as a mater of fact Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). In so doing, the ALJ should consider all of the DIME physician’s written and oral testimony. Lambert Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656, 659 (Colo.App. 1998). We may not interfere with the ALJ’s resolution of these issues if supported by substantial evidence. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.
Here, the ALJ determined that the DIME physician’s opinion was that there was no relationship between the alleged back condition and the industrial injury. (Finding of Fact 7; Conclusion of Law 6). Therefore, it was the DIME physician’s opinion the claimant reached MMI for the work-related abdominal injury on January 1, 2002. These determinations represent a plausible interpretation of the DIME physician’s opinion as reflected in his deposition. Therefore, we may not interfere with the ALJ’s findings concerning the DIME physician’s determinations regarding MMI and impairment.
Further, ALJ Henk did not preclude relitigation of the causation issue based on ALJ Friend’s June 2002 order. To the contrary, she considered the DIME physician’s opinions regarding the cause of the back condition and resolved the issue adversely to the claimant.
We do not understand the petition to review to raise any other specific arguments concerning the DIME physician’s opinion or the ALJ’s evaluation of it. Therefore, we do not consider any other potential issues.
II.
The claimant asserts that, contrary to the ALJ’s order, his application for hearing addressed the issue of medical benefits after MMI as provided in Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). While the claimant’s statement is true, the absence of a transcript precludes us from determining whether the issues were further limited at the hearing and the issue of Grover medicals was waived. It is presumed the proceedings were regularly and fairly conducted unless the contrary appears from the record. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1005). In the absence of a transcript, we decline to override the presumption of regularity. Further, the claimant has failed to provide a record sufficient to demonstrate that any error actually occurred.
III.
Next the claimant asserts that as a matter of constitutional law §8-43-211(1)(d) must be construed as applying to “both unripe defenses and unripe claims.” Assuming, arguendo, that ALJ Henk concluded that the statute does not apply to defenses, the record is insufficient to show the respondents raised any “unripe defenses” or frivolous arguments. We decline to draw that inference in the absence of a transcript of the relevant proceedings.
IV.
The claimant contends the ALJ erred by failing to impose interest on unpaid medical bills. This conclusion was based on the ALJ’s determination that medical benefits are not “compensation” subject to interest. We agree with the claimant’s argument.
Section 8-43-410(2) provides the respondents “shall pay interest at the rate of eight percent per annum on all sums not paid on the date fixed by the award” for the payment thereof. (Emphasis added). In Dickson v. Pueblo Transportation Co., W.C. No. 3-777-995 (March 31, 1994), we stated the following:
It is true that the courts have reached varying results when determining whether “medical benefits” constitute “compensation” under various provisions of the Act. Compare Racon Construction Co. v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App. 1989), and American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985). However, the “medical benefit” versus “compensation” dichotomy does not appear in section 8-43-410(2), which provides for payment of interest on all “sums” not paid upon the date fixed by the award. In our view, there can be little doubt that an award of medical benefits constitutes a “sum” payable under the provisions currently codified at section 8-42-101(1)(a), C.R.S. (1993 Cum. Supp.). This conclusion appears to consistent with the” majority rule” which holds that medical benefits are” compensation” subject to interest. 3 Larson, Workmen’s Compensation Law,
section 83.42(c).
Since our decision in Dickson, the question of whether “medical benefits” constitute “compensation” has continued to trouble the courts. Eg. Support, Inc. v. Industrial Claim Appeals Office, 968 P.2d 174
(Colo.App. 1998) (medical benefits not held to be compensation for purposes of forfeiture statute found in § 8-43-402). However, we are aware of no authority, and the respondents cite none, which holds that overdue medical benefits are not a “sum” subject to interest for purposes of § 8-43-410(2). For this reason we adhere t Dickson and remand with directions to determine the amount of interest to be paid for overdue medical benefits. Obviously, interest should be paid to the provider if it was the provider who rendered the service without immediate compensation, or to the claimant if the claimant paid the medical bill pending adjudication. We also note that the citation to Larson contained in the Dickson decision is currently Larson’s Workers’ Compensation Law, § 134.04 [3].
V.
The claimant’s remaining contentions are worded generally and do not describe particular errors or objections to the ALJ Henk’s order. In the absence of a brief or petition to review containing citations to legal authorities, and considering the lack of a transcript, and we decline to speculate whether the ALJ’s order is supported by the record or contains some legal error not specified by the claimant.
IT IS THEREFORE ORDERED that the ALJ Henk’s order dated February 3, 2004, is set aside insofar as it denied interest on late paid medical benefits. On this issue the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Jeremy Stephens, 1307 Grays Peak Dr., Longmont, CO, Gray North Air Package Express Services, Inc., CA, Chandra Singh, American Employers Group, San Francisco, CA, Chris L. Ingold, Esq., Cherry St., Denver, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq., Denver, CO, (For Respondents).