W.C. No. 4-786-424.Industrial Claim Appeals Office.
May 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 9, 2009, that denied the claimant’s request for penalties against the respondents and against employees of the Division of Workers’ Compensation (DOWC). The ALJ also denied the claimant’s request to determine the propriety of the Division-sponsored independent medical examination (DIME) selection process. We affirm.
The claimant suffered compensable industrial injuries on November 26, 2008. The respondents filed a Final Admission of Liability (FAL) and an amended FAL, both of which were objected to by the claimant. The claimant filed a Notice and Proposal for a DIME. The parties were unable to agree on a DIME physician. The Division DIME Unit sent the IME Physician Panel form to the parties, but the claimant did not strike any of the physicians from the panel. Instead, the claimant filed an application for hearing requesting penalties against the respondents and against the DIME Unit, and raising the issue of the propriety of the DIME panel selection. The ALJ dismissed the requests for penalties against the respondents and against the employees of the Division. The ALJ also denied the claimant’s request to determine the propriety of the DIME selection process. The claimant appealed the ALJ’s order.
I.
The claimant first contends that the ALJ erred in denying the claimant’s request for penalties against the respondents. However, the claimant has not, in his Petition to Review nor in his Opening Brief in Support of his Petition to Review, identified any
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specific error or made any argument upon which appellate relief could be granted. Therefore, the effectiveness of our review is limited. Nonetheless, we have reviewed the record and perceive no error in this regard.
The ALJ entered the following findings of fact with record support. The respondents filed an FAL on March 11, 2009. Exhibit P at 64. On March 24, 2009, the Division advised the insurer that the FAL was defective, and directed the insurer to file an amended FAL. Exhibit M at 60. The insurer responded to the Division in a March 26, 2009 letter and explained the basis for temporary total disability payments. Exhibit K at 57. On April 14, 2009, the insurer filed an amended FAL in accord with the Division’s request. Exhibit J at 49. The ALJ concluded that the claimant had not produced sufficient evidence that the respondents violated a provision of the Act or a rule by filing the amended FAL.
In the claimant’s proposed order he designated the penalty sought against the respondents as being for unilaterally filing an amended FAL “contrary to § 8-42-107.2 and W.C.R.P.” However, in his proposed order the claimant did not include any findings of fact that were significantly at variance with the findings made by the ALJ here.
Section 8-42-107.2 deals with requirements for the selection of an independent medical examiner under the DIME procedures. The claimant has not identified how filing an amended FAL by the respondents violated the provisions of the DIME selection process. We are not persuaded that the ALJ erred in failing to impose penalties pursuant to § 8-43-304, based on the actions of the insurer in filing an amended FAL.
Section § 8-43-304 authorizes an ALJ to impose a penalty for each day a party violates any provision of the Workers’ Compensation Act, fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director, or refuses to obey any lawful order made by the director or the panel. Here the ALJ first determined that the respondents’ conduct did not violate the Worker’s Compensation Act, a rule, or an order.
In our view, the ALJ correctly analyzed the first necessary step required for imposition of penalties. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d (Colo. App. 1995). In reviewing the ALJ’s order refusing to impose penalties, we are bound by his factual findings if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences See F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the
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prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
As noted above the ALJ’s finding that the respondents’ conduct did not violate the Worker’s Compensation Act, a rule, or an order is in our view supported by substantial evidence in the record. Therefore, we perceive no reason to interfere with the ALJ’s dismissal of the penalty claim.
II.
The claimant next contends the ALJ erred in failing to make a determination of the propriety of the DIME selection process. The claimant contends the DIME Unit refused to provide a medical examiner with expertise in the requested medical field to evaluate the claimant’s injury. The claimant contends that the ALJ improperly refused to address the issue because of his incorrect determination that his jurisdiction was limited to disputes between employees and employers.
Here the ALJ noted that the claimant challenged the propriety of the DIME selection process. The ALJ then noted that by challenging the propriety of the DIME selection process the claimant contends that the Division had failed to comply with § 8-42-107.2 and WCRP 11-3(c). The ALJ found that the claimant’s assertion did not constitute a dispute with an employer regarding a work-related injury, but instead involves a challenge to the Division’s application of a relevant statute and corresponding Rule. The ALJ reasoned that a determination of whether the Division complied with § 8-42-107.2 and WCRP 11-3(c) was not a matter arising under the Act. The ALJ thus determined that he lacked jurisdiction to consider the claimant’s challenge to the propriety of the DIME selection process. For the same reasons the ALJ denied the claimant’s request for penalties against employees of the DOWC.
It is evident from his order that the ALJ did not believe that Workers’ Compensation Rule of Procedure 11-10 conferred jurisdiction upon him to resolve the claimant’s dispute over the DIME. That rule provides that “[d]isputes concerning the division IME process that arise in individual cases that cannot be resolved by agreement of the parties, may be taken to an administrative law judge for resolution.” The ALJ apparently viewed this dispute as one implicating the DIME system as a whole rather than one that had arisen in an “individual case” under the language of the rule.
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We generally agree that the ALJ might lack jurisdiction to adjudicate generalized complaints about the DIME processes that do not arise in an individual case. However, here it is questionable whether the dispute is correctly characterized as a specific one arising in an individual case or as an attack on the DIME processes in general. As noted by the ALJ, the Office of Administrative Courts ALJs, along with the Director, have original jurisdiction to hear and decide all matters arising under the Workers’ Compensation Act (Act). Section 8-43-201, C.R.S.; see Giddings v. Industrial Claim Appeals Office 39 P.3d 1211 (Colo. App. 2001); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo. App. 1992). The Director and ALJs share the same powers in connection with hearings concerning any controversy over any issue under the Act, and both may issue orders. Section 8-43-207(1)(k), C.R.S. See also Maestas v. Wal Mart Stores, Inc. W.C No. 4-717-132 (January 22, 2009) Rodriguez v. Safeway Stores, Inc., W.C. No. 4-712-019 (June 03, 2009) (the WCRP contemplate litigation before an ALJ of disputes arising over the administration of the DIME system).
However, it is unnecessary for us to determine whether the ALJ was without jurisdiction to resolve the dispute over the DIME unit’s procedures. We have examined the record upon which the claimant relied in making his claim that the Division processes were defective. We conclude that it is insufficient as a matter of law to support any order providing relief. Therefore, whether the ALJ had jurisdiction or not, he could not have entered an order resolving the DIME issue that contained factual findings that the DIME unit failed to follow its procedures, failed to comply with the applicable law, or otherwise violated the claimant’s due process rights. Those factual findings would be unsupported by the record and would necessarily be stricken and the order set aside.
In this regard, we note that the parties appeared at the hearing and at the outset the claimant stated that he had no witnesses to present. Tr. at 4. He submitted exhibits consisting of two applications for hearing and an “IME Physician Panel.” See
Claimant’s Exhibits 1-3. The latter is a Division form containing the names of three physicians, one of whom is intended to be stricken by each party, leaving the third as the DIME physician. The claimant’s exhibit contained a large, hand-written “x” through the name of one of the doctors, presumably having been stricken by the respondents prior to its transmittal to the claimant’s attorney’s office.
This factual record is insufficient to support an inference by the ALJ that the DIME unit failed to comply with its procedures, failed to comply with the Act or with applicable regulations, or violated the claimant’s due process rights. We understand the claimant’s arguments regarding the deficiencies in the DIME physician selection process; however, the ALJ may not provide relief merely by accepting those arguments. Rather, the ALJ’s conclusions must be supported by factual findings that are, in turn, supported by substantial evidence. Here, the record is virtually devoid of testimony, or evidence
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that would support the factual findings urged by the claimant. Accordingly, we conclude that the ALJ correctly dismissed the claim that the DIME unit violated its procedures or violated the claimant’s due process rights.
III.
The claimant also contends that the ALJ erred in dismissing his penalty claim for lack of jurisdiction. We disagree.
Section 8-43-304(1) provides for the imposition of penalties where any “employer or insurer, or any officer or agent of either, or any employee, or any other person violates any provision of articles 40 to 47” of the Act. See Barnes v. Colorado Department of Human Services August 17, 2005, W. C. No. 4-632-352 (ALJ has jurisdiction over issue of penalty brought against third-party provider).
Here, no employee of the Division was made a party to the hearing before the ALJ. This is confirmed by the hearing transcript of the October 30, 2009 hearing. We note that certain employees of the Division were listed as witnesses, but apparently no arrangement was made for them to appear at the hearing. Whether or not an employee of the Division may be subject to penalties, and we do not assume that to be the case, the employee must have had an opportunity to be present at the proceeding during which penalties are sought. We do not hold here that a Division employee is subject to being penalized under § 8-43-304. However, in any event, penalties may not, consistent with due process, be imposed against an individual who has not been joined in the proceeding and notified that statutory penalties are sought.
In workers’ compensation proceedings, the test for determining an indispensable party is whether an absent person’s interest in the subject matter of litigation is such that no decree can be entered in the case, which will do justice between the parties actually before the court without injuriously affecting the right of such absent person. Intermountain Rubber Industries, Inc. v. Valdez 688 P.2d 1133 (Colo. App. 1984). Here the relief requested by the claimant cannot be granted in the action brought by him because of the absence of the employees the claimant sought penalties against. Certainly, penalties cannot be imposed on individuals who were not named as parties or present at the hearing. Therefore, the ALJ correctly dismissed the penalty claim for lack of jurisdiction, although we note that the lack of jurisdiction derived from the absence of the parties sought to be penalized and not, as the ALJ believed, for lack of subject matter jurisdiction.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 9, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriltscii
____________________________________ Thomas Servant
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EFREN CARO, FT COLLINS, CO, (Claimant)
JOHNSON CONTROLS, INC., Attn: BRIAN T NUELK, MILWAUKEE, WI, (Employer)
PACIFIC INSURANCE, Attn: RAMON LENDOF, OVERLAND PARK, KS, (Insurer)
LAW OFFICES OF RICHARD K BLUNDELL, Attn: RICHARD K. BLUNDELL, ESQ., GREELEY, CO, (For Claimant)
BLACKMAN LEVINE, LLC, Attn: TAMA L. LEVINE, ESQ., DENVER, CO, (For Respondents)
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