Opinion
W.C. No. 4-361-382
May 13, 1999.
FINAL ORDER
The claimant and respondents separately petitioned for review of an order of Administrative Law Judge Henk (ALJ) which reduced the claimant's temporary disability benefits pursuant to § 8-42-112(1)(c), C.R.S. 1998 (injury resulting from intoxication). We affirm.
The claimant suffered compensable injuries on October 31, 1997 when he fell from a ladder. The claimant received emergency treatment at Memorial Hospital which drew a blood sample. The toxicology report indicated a blood/alcohol level of .104.
The respondents filed a General Admission of Liability which admitted liability for temporary total disability benefits commencing November 1, 1997. On February 23, 1998, the respondents filed a petition to modify the claimant's temporary disability rate based on the toxicology report and § 8-42-112(1)(c).
Section 8-42-112(1)(c) provides that compensation shall be reduced by 50 percent where the injury:
"results from the intoxication of the employee. When an employee has a .10 or more grams of alcohol per one hundred milliliters of blood or 0.10 or more grams of alcohol per two hundred ten liters of breath as shown by chemical analysis, it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication. This presumption may be overcome by clear and convincing evidence."
Crediting the toxicology report, and the testimony of Dr. Larry Howard, who was qualified as an expert in forensic toxicology, the ALJ determined that the respondents sustained their burden to establish the statutory presumption of intoxication and that claimant failed to overcome the presumption. The ALJ also determined that even without the toxicology report, the respondents sustained their burden to prove the claimant's injury was the result of intoxication. Therefore, the ALJ ordered a 50 percent reduction of temporary disability benefits effective August 3, 1998, the date of the ALJ's Summary Order. The ALJ entered Specific Findings of Fact on August 31, 1998. The parties timely appealed.
I.
On review, the claimant contends the ALJ erroneously credited the Memorial Hospital toxicology report and Dr. Howard's testimony. The claimant contends the toxicology report is unreliable because there is no evidence Memorial Hospital has a "certified" lab and the report is a "medical blood alcohol test" not a "forensic blood alcohol test." The claimant also contends that his blood was drawn and tested in a manner that probably gave erroneous results, and that the test results cannot be verified for accuracy. In support, the claimant relies on Dr. Howard's admission that blood/alcohol tests have a margin of error, that the failure to properly preserve a blood sample may produce inaccurate results, that a blood sample may be contaminated when drawn, that is it unknown when the claimant's blood sample was tested and that results may vary between blood drawn from a vein and artery. We are not persuaded by the claimant's arguments.
Whether the respondents sustained their burden of proof for the application of § 8-42-112(1)(c) is a question of fact for resolution by the ALJ, which must be upheld if supported by substantial evidence and plausible inferences from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard we must defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence she credited is so overwhelmingly rebutted by "hard, certain evidence" that the ALJ would err as a matter of law in crediting the evidence. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997), cert. denied, April 12, 1999. The claimant's arguments notwithstanding, we perceive no extreme circumstances here.
The ALJ found the claimant was injured at between 3:30 p.m and 3:45 p.m. Dr. Howard, who is an expert in forensic toxicology testified that Memorial Hospital drew the claimant's blood sample at 4:15 p.m. (Tr. p. 34). Based on evidence that the claimant's last alcohol consumption was at noon on the day of the injury, Dr. Howard opined that the claimant's alcohol absorption rate was on a downward cycle at the time of the injury. (Tr. p. 35). Furthermore, using a burn off rate of .016 per hour, Dr. Howard concluded that the claimant consumed 4 to 5 beers at lunch and that the claimant's blood/alcohol level was at least .104 at the time of the injury. (Tr. pp. 36, 42). Dr. Howard also opined that the claimant would experience a loss of balance at a blood/alcohol level of .104. (Tr. pp. 40, 41).
The claimant did not present any evidence to establish that his blood sample was contaminated, not properly drawn, not properly preserved, or that there was an unreasonable delay in testing the sample. Therefore, Dr. Howard's testimony that these factors could effect the accuracy of a blood/alcohol test does not compel a finding that the toxicology report is inaccurate.
Similarly, we recognize Dr. Howard's admission that every blood testing procedure contains a margin of error of at least .003, and that error rates may vary. (Tr. pp. 44, 45). However, the claimant did not present any evidence that Memorial Hospital's margin of error was greater than .003. Therefore, Dr. Howard's testimony supports the ALJ's finding that the claimant's blood/alcohol rate was at least .100 at the time of the injury and that the respondents established the statutory presumption of intoxication.
Further, claimant did not present evidence that only "forensic blood alcohol tests" from "certified" testing labs produce accurate blood/alcohol results. Section 8-42-112(1)(c) does not require the ALJ to apply such a standard, and we perceive no error in the ALJ's failure to do so. Cf. § 8-73-108(5)(e)(IX.5), C.R.S. 1998 (disqualification from receipt of unemployment benefits warranted where a separation from employment is due to presence of alcohol in an individual's system as evidenced by a test conducted by a licensed or certified facility).
Under these circumstances, we cannot say the ALJ erred in crediting the toxicology report and that part of Dr. Howard's testimony which was dependent on the toxicology report. Moreover, there is substantial evidence to support the ALJ's finding that the claimant failed to overcome the statutory presumption on the cause of the claimant's injury, and that the respondents proved the claimant's injury was due to intoxication even without the statutory presumption.
The employer's witnesses Chris Dziaba (Dziaba) and James Medeck (Medeck) testified that at the time the injury the claimant was working on a ladder with treaded steps, which was leaned against a wall. (Tr. p. 13). The respondents witnesses stated that the floor was dry and that the ladder was still leaning against the wall after the injury. (Tr. pp. 12, 13, 21, 22). They also indicated that there was no indication the had ladder moved, or that an object had fallen on the claimant and knocked him off the ladder. (Tr. pp. 23, 26). Further, Dziaba testified that he witnessed the claimant fall backwards off the ladder. (Tr. p. 23).
The claimant's wife testified that over the last 34 years the claimant normally drank "a couple of six-packs" of beer a day. (Tr. p. 64). The claimant stated that he had two or three beers at noon on the day of the accident but he admitted he may have had more. (Tr. pp. 18, 19). Further, the claimant did not offer an explanation for the injury. To the contrary, the claimant stated that he did not remember how the accident occurred, and could not dispute the testimony of the respondents' witnesses. (Tr. pp. 82, 83). The evidence is sufficient to support the ALJ's implicit inference that the claimant was intoxicated at the time of the injury and that the intoxication caused him to fall resulting in injuries. See Ackerman v. Hilton's Mechanical Men, Inc., supra.
The claimant's remaining arguments on this issue have been considered and do not alter our conclusions. Consequently, the ALJ correctly determined that the claimant is subject to a 50 percent penalty under § 8-42-112(1)(c).
II.
The respondents contend the ALJ erred in failing to grant the 50 percent penalty for benefits paid prior to August 3, 1998. The respondents contend that the penalty provided by § 8-42-112(1)(c) is analogous to a social security "offset," which may be taken retroactively. Therefore, they argue the ALJ should have reduced the claimant's temporary disability rate retroactive to the date of the injury, or at least to the date of the Petition to Modify. In support the respondents rely on Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). We disagree with the respondents' argument.
Section 8-42-103(1)(c), C.R.S. 1998 creates a statutory right to offset social security benefits against the insurer's liability for workers' compensation benefits. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). The express purpose of the offset is to prevent a "double recovery" of full workers' compensation benefits and full social security benefits, because in the absence of the offset, there is a potential windfall to the claimant. L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994); Johnson v. Industrial Commission, supra. Therefore, in Johnson, the court allowed a retroactive offset against the claimant's receipt of social security disability benefits.
However, the 50 percent reduction provided by § 8-42-112(1)(c) is not an "offset" against funds received from a collateral source. Neither is it designed to prevent a double recovery. Rather, § 8-42-112(1)(c) is a penalty for purposes of deterring employee misconduct. See Wild West Radio Inc. v Industrial Claim Appeals Office, 886 P.2d 304 (Colo.App. 1994). Further, § 8-42-112(1)(c) is an affirmative defense to the insurer's liability for temporary disability benefits which is only applicable upon proof that the injury is the result of intoxication.
Moreover, the Rules of Procedure explicitly allow an insurer to unilaterally assert a social security offset and the General Assembly has created a statutory right to recovery overpaid benefits due as a result of a social security award. Rule of Procedure Part IX(E), 7 Code Colo. Reg. 1101-3 at 36; § 8-42-113.5 C.R.S. 1998. However, no similar rights have been created for the modification of temporary disability benefits under § 8-42-112(1)(c). Therefore, we reject the notion that the provisions of § 8-42-112(1)(c) are subject to the same procedural rules as "offsets."
To the contrary, there is no requirement the respondents admit liability for temporary disability benefits. However, once an admission of liability is filed, the Workers' Compensation Act does not allow the admission to be retroactively withdrawn or revoked. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). An exception exists when the claimant makes fraudulent misstatements regarding the specific injury for which benefits are claimed. Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981).
In HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990), the court held that if an admission of liability is contested by either party, the "admission is binding only until the controverted issue is determined after the hearing." The facts in HLJ involved an admission of liability for temporary total disability benefits based upon an average weekly wage of $191.07. The claimant subsequently requested a hearing concerning the amount of the average weekly wage. At the hearing, the ALJ determined that the claimant's average weekly wage was actually $175.25 per week, and consequently, the ALJ retroactively reduced the claimant's temporary total disability benefits for the period of prehearing disability. We reversed, holding that the respondents were bound by their admission for the average weekly wage.
In setting aside our order, the court of appeals noted that, under the statute currently codified at § 8-43-203(2)(d), C.R.S. 1998, hearings may be set to determine any issue, "but, if any liability is admitted, payment shall continue according to admitted liability." In view of this statute, the HLJ court concluded that the respondents were only entitled to prospective relief from their improvidently filed admission on the issue of the average weekly wage.
Section 8-42-105(3), C.R.S. 1998, provides that where the respondents admit liability for temporary total disability benefits, payment must continue until terminated in accordance with subsections 8-42-105(3)(a)-(d). Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Expressly relying on HLJ we have previously concluded that an ALJ may not retroactively modify admitted liability for temporary disability benefits. See Lane v. Pueblo Kennel Association, W.C. No. 3-856-910 (May 30, 1995); Wilson v. Kmart Corporation, W.C. No. 3-109-705 (May 17, 1995) ; Urien v. Western Tanning Inc., W.C. No. 3-052-057 (October 22, 1990). We adhere to our prior conclusions.
Furthermore, the Director of the Division of Workers' Compensation (Director) has promulgated Rules of Procedure to govern the termination, suspension and modification of temporary disability benefits under § 8-42-105(3) and we must defer to the Director's construction of the statute. See Travelers Indemnity Co. v. Barnes, 190 Colo. 278, 552 P.2d 300 (1976); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992) (procedural rules have the force and effect of law).
Rules of Procedure IX(D) (H), 7 Code Colo. Reg. 1101-3 at 32, 36 provide that except as authorized by Rule IX(A)-(C) and (E)-(G), the respondents may not unilaterally withdraw an admission of liability for temporary disability benefits without an order. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). Here, it is undisputed the respondents were not entitled to unilaterally modify the claimant's temporary disability benefits.
Rule IX(D)(1) (3) at 35 provides that where the insurer seeks to modify temporary disability benefits but is unable to do so unilaterally, the insurer may file a petition to modify and if the claimant objects to the petition:
"the insurance carrier shall continue temporary disability benefits at the previously admitted rate until an application for hearing is filed pursuant to Rule VIII, and the matter is resolved by order."
Rule IX(D) reflects the Director's determination that the principles announced in HLJ apply to admitted liability for temporary disability benefits, where the claimant objects to the respondents petition to modify. See Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995) (interpretation of procedural rules is subject to the usual rules of statutory construction); Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997) (procedural rules must be construed to give the legislative intent of the statute it is designed to administer). Furthermore, Rule IX(H) at 36.01 provides that if the respondents do not comply with Rule IX, they may be ordered to reinstate temporary disability benefits until a hearing and "further order is entered." Consequently, the Rules of Procedure do not support the respondents' contention that they are entitled to a retroactive reduction of temporary disability benefits.
Rather the respondents are bound by their admission until the petition to modify is resolved by the ALJ after a hearing. HLJ Management Group v. Kim, supra; Pham v. Safeway Stores, Inc., W.C. No. 3-942-241 (May 16, 1991) . This conclusion is buttressed by the fact that Rule IX(D) also provides that a petition to suspend, modify or terminate temporary disability benefits be placed on an expedited docket to avoid the overpayment of benefits.
We also reject the respondents' argument that Rule IX(D)(3) supports their right to a retroactive reduction of temporary disability benefits. Rule IX(D)(3) provides that if the claimant does not timely object to a petition to modify, the insurer may modify temporary disability benefits effective on the date of the petition to modify. The respondents arguments notwithstanding, Rule IX(D)(3) indicates that where there is no objection, the "controverted issue" is resolved on the date the petition to modify is filed, and therefore, the modification is effective immediately.
Here, it is undisputed that the claimant timely objected to the respondents' Petition to Modify temporary disability benefits and the matter was scheduled for a hearing. The record also reveals that the petition was not resolved until the entry of the ALJ's Summary Order dated August 3, 1998. Under these circumstances, the ALJ did not err in refusing to grant a modification prior to August 3, 1998.
IT IS THEREFORE ORDERED that the ALJ's order dated August 31, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 1998.
Copies of this decision were mailed May 13, 1999 the following parties:
Frank Arenas, 938 Daffodil, Fountain, CO 80817
Kent Enterprises d/b/a Kent Sheet Metal, 1623 N. Circle Dr., Colorado Springs, CO 80909
Terry Stewart, Fremont Indemnity, 1471 Shoreline Dr., #200, Boise, ID 83702
Patrick J. McDivitt, Esq., 6 S. Tejon, #400, Colorado Springs, CO 80903 (For Claimant)
Carol A. Finley, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)
BY: le