W.C. No. 4-501-466Industrial Claim Appeals Office.
January 16, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) insofar as it denied temporary disability benefits and penalties. We affirm the order denying temporary disability benefits, set aside the denial of penalties and remand the matter for the imposition of a penalty.
On March 7, 2001 the claimant suffered a compensable low back injury while employed by Backwood Video. Shortly after she returned to work she was laid off. The claimant subsequently underwent back surgery. The respondents reinstated temporary disability benefits up through July 25, 2001, when the claimant secured new employment as a meter reader for KinderMorgan. At the time of hire, the claimant was medically restricted from lifting/carrying, or push/pulling over 30 pounds.
The ALJ found the claimant was capable of performing her job at Kinder Morgan until she was discharged for failing to call in or report for work on August 23 and 24. The ALJ further found that the claimant’s failure to contact her employer to report her absence was a volitional act. Therefore, the ALJ determined the claimant was “responsible” for the termination within the meaning of § 8-42-105(4), C.R.S. 2002 and denied temporary disability benefits after August 23. The ALJ also denied the claimant’s request for penalties against the respondents for violating the Rules of Procedure, Part XVI(J), 7 Code Colo. Reg. 1101-3.
I.
On review, the claimant contends the record does not support the ALJ’s finding that she failed to contact the employer and report her absences on August 23 and 24. The claimant also contends that as a result of increased medical restrictions imposed on August 15 and August 22 she was physically unable to perform the duties required of her employment at Kinder Morgan. Therefore, she argues she could not be responsible for the termination of employment she was physically unable to perform. Further, the claimant argues that § 8-42-105(4) is not applicable to this claim because she was not responsible for the loss of the employment that gave rise to the industrial injury and she was not required to required to conduct a job search for modified employment. The claimant’s arguments notwithstanding, we conclude the ALJ did not err in denying temporary disability benefits.
Temporary total disability benefits are designed to compensate an injured worker for actual loss of earnings, while permanent disability benefits are intended to compensate for impaired earning capacity. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). A claimant normally receives temporary disability and permanent disability benefits consecutively, not concurrently. Under some circumstances, temporary and permanent partial disability benefits may be paid concurrently. See Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994) Hetherington v. Aspen Leaf Builders Supply, Inc., W.C. No. 3-058-466, May 22, 1997. However, when a claimant seeks additional temporary disability benefits after receiving an award of permanent partial disability benefits, due to a worsened condition, the claimant must show that the worsened condition has caused a greater impact on the claimant’s earning capacity than existed at the time permanent partial disability benefits were awarded. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). It follows that a claimant is not entitled to benefits for temporary disability, and permanent total
disability for the same periods of time. Waymire v. Industrial Claim Appeals Office, 924 P.2d 1168 (Colo.App. 1996). This is because a claimant cannot be more than permanently totally disabled.
Here, the ALJ found, and it is undisputed that, in 1997 the claimant stipulated she was permanently and totally disabled as a result of three prior work-related injuries, the last of which occurred in 1992. Based upon the stipulation the claimant was awarded permanent total disability benefits consisting of a lump sum payment and a guarantee of periodic payments for 30 years. The ALJ further found the claimant continues to receive periodic payments for permanent total disability pursuant to the settlement. (Finding of Fact 17).
Section 8-40-201(16.5)(a), C.R.S. 2002, which governs injuries that occur on or after July 1, 1991, defines permanent and total disability as the inability “to earn any wages in the same or other employment.” Thus, under the law applicable to the claimant’s 1992 industrial injury, the claimant stipulated she no residual earning capacity as of 1997. Because she conceded she had no earning capacity, her 1999 industrial injury could not have caused any greater impact on her earning capacity than existed at the time of the full and final settlement. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, the ALJ’s findings compel the conclusion the claimant is barred from receiving additional temporary disability benefits. Under these circumstances, we need not consider the claimant’s particular arguments concerning the application of § 8-42-105(4).
II.
On the issue of penalties, the claimant contends the record compelled the ALJ to impose a penalty. We agree.
Rule XVI(J)(2)(b), 7 Code Colo. Reg. 1101-3 at 79 (2001)[adopted October 4, 2001 and effective November 30, 2001, 24 CR 11], which governs this claim provides that if the insurer contests a request for prior authorization for medical reasons the payer must provide must notify the parties and the provider in writing, of the basis for the contest within 7 days. See Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766
(Colo.App. 1988) (procedural requirements apply to all cases pending as of the effective date).
The ALJ determined the claimant sought penalties under § 8-43-304(1), C.R.S. 2002, based upon the insurer’s violation of Rule XVI(J). On appeal, the respondents do not dispute the application of 8-43-304(1). There we do not consider the issue on review. See Holliday v. Bestop Inc., 23 P.3d 700 (Colo. 2001).
As found by the ALJ, 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 the Act. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). If the ALJ finds a violation, penalties may only be imposed if the insurer’s actions which resulted in the violation were objectively unreasonable Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). In this regard, an insurer actions are not unreasonable if they are predicated on a rational argument based in law or fact. Diversified Veterans Corporate Center v. Hewuse, supra.
The ALJ found the insurer violated former Rule XVI(J). In particular, the ALJ found the respondent-insurer failed timely to respond to a preauthorization request for surgery from Dr. Corenman dated September 13, 2001. (Findings of Fact 18, 19). The insurer did not respond to the preauthorization request until September 28, 2001. Nevertheless, the ALJ found the delay in responding to the preauthorization request was based on a bona fide dispute concerning whether the need for surgery was caused by pain due to work-related pseudoarthrosis.
Contrary to the ALJ’s determination, Rule XVI(J)(2) expressly contemplates that the insurer may contest surgery based upon an argument that the surgery is not medically reasonable or necessary to cure or relieve the effects of the industrial injury. Although a dispute concerning the reasonableness of the requested treatment may be the basis for an insurer’s refusal to pre-authorize treatment, it does not relieve the insurer of the duty timely to notify the provider that authorization is contested. Accordingly, the ALJ’s finding the insurer’s violation was based on a bona fide dispute concerning the causal connection between the industrial injury and the claimant’s need for surgery does not constitute a rational argument that the insurer was not required to comply with Rule XVI(J)(2). It follows that the ALJ’s findings do not support the order denying penalties. Consequently, the matter is remanded to the ALJ for a determination of the amount of the penalty to be imposed under §8-43-304(1).
III.
Next, the claimant contends the ALJ’s Finding of Fact 2 is erroneous insofar as the ALJ determined “Claimant had difficulty performing the duties” of her employment for the respondent-employer due to limitations created by her preexisting back condition. The claimant contends the finding reflects a typographical error by the ALJ and that the ALJ actually found the claimant “had no difficulty” performing her duties.
We are unable to ascertain whether the omission was a typographical error. However, there is no evidence to support a finding that the claimant had difficult performing the duties of her employment with the respondent-employer due to limitations from her preexisting back condition. Therefore, we modify the ALJ’s order to set aside the contested portion of Finding 2.
IV.
Finally, the claimant contends the ALJ erroneously dismissed the entire claim for workers’ compensation. We disagree with the claimant’s construction of the ALJ’s order.
The ALJ stated that the issues for adjudication were medical benefits, temporary disability benefits, penalties, and offsets. Although the ALJ denied and dismissed the “Claimant’s claim for benefits,” the ALJ expressly reserved all other issues for future consideration. Accordingly, the ALJ did not dismiss and deny the entire claim for compensation.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated May 24, 2002, is set aside insofar as it denied the claim or penalties and the matter is remanded to the ALJ for a new order on that issue which is consistent with the views expressed here.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as the ALJ found the claimant “had difficulty performing” her job duties with the respondent-employer due to the limitations created by her pre-existing back condition. Except as specified set aside the ALJ’s order is otherwise 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,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 mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed _________January 16, 2003 __________to the following parties:
Karla Taylor, P.O. Box 5047, Gypsum, CO 81637
Backwoods Video, P.O. Box 603, Gypsum, CO 81637
Rhonda Norris, State Farm Insurance Co., P.O. Box 266004, Littleton, CO 80163
Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: __________A. Hurtado__________