Opinion
W.C. No. 4-447-584.
February 8, 2006.
FINAL ORDER
The claimant seeks review of an order dated August 11, 2005 of Administrative Law Judge Stuber (ALJ) that assessed a penalty of $25 per day for respondents' failure to timely pay for and provide medical records for the Division-sponsored independent medical examination (DIME). The ALJ also found that the respondents had not waived the right to a DIME by violating procedural rules. We affirm.
The claimant suffered an admitted industrial injury and was placed by the authorized treating physician at maximum medical improvement (MMI) with an impairment rating. The respondents applied for a DIME. They were notified that Dr. Fitzgerald had been selected to perform the DIME but for some reason, not clear from the record, a different physician actually performed the DIME. Both parties objected and the Division of Workers' Compensation (DOWC) selected another physician, but one who was only accredited for orthopedic evaluation. The claimant objected to this physician and ALJ Felter ordered the DOWC to provide a new panel of three fully-accredited physicians from which the parties could select a new DIME physician.
The respondents appealed ALJ Felter's order and on December 29, 2004 we dismissed their petition to review as interlocutory. On January 31, 2005, the claimant wrote to the DOWC to request that it issue a new panel of physicians. The Division did so, and Dr. Finn was selected to perform the DIME. On February 22, 2005 Dr. Finn's office wrote to the respondents' attorney to request prepayment of the fee and to request that medical records be provided at least seven business days before the April 11, 2005, DIME appointment.
On March 31, 2005 the claimant's attorney faxed a letter to the respondents' attorney, stating that Dr. Finn had not yet received the medical records and requesting that respondents send them. On April 11, 2005 Dr. Finn's office wrote indicating that the DIME had to be canceled due to nonpayment of the fee and the failure to provide medical records. The appointment was rescheduled to May 2, 2005. The ALJ determined that the claimant did not seek to cancel the DIME appointment as provided by rule. The DIME took place and the respondents filed an admission based on the DIME physician's report.
The ALJ denied the claimant's claim for additional benefits in excess of the impairment found by the DIME physician and admitted by the respondents. The ALJ found that the respondents had failed to make the required payment for the DIME appointment and had failed to provide medical records; however, he concluded that in doing so they had not waived their right to the DIME. The ALJ awarded a penalty in the amount of $25 per day for the 14 days the respondents had failed to provide the medical records to the DIME physician and $25 per day for the 10 days the respondents failed to make payment for the DIME appointment.
On review the claimant first contends that the ALJ erred in finding that he did not seek to cancel the DIME appointment pursuant to Rule of Procedure XIV(L)(3)(I), 7 Code Colo. Reg. 1101-3 [since renumbered with minor changes as Rule 11-3(I)]. The claimant argues that he had filed an application for hearing which included the issue of whether the respondents had waived their right to a DIME by their late submission of medical records and late payment to the doctor. We disagree with the claimant's contention.
Rule of Procedure XIV(L)(3)(I) provides that:
If the insurance carrier or its representative fails to timely submit medical records to the designated IME physician, the claimant may request the Division cancel the IME: or the claimant may submit all medical records he/she has available no later than 10 calendar days prior to the IME examination; or as otherwise arranged by the Division with the IME physician. This rule does not prohibit the rescheduling of the IME.
The "Division" referred to in the rule is "the Division of Workers' Compensation" in the Department of Labor and Employment. Rule of Procedure II(A)(4), 7 Code Colo. Reg. 1101-3[since renumbered Rule 1-1(D)]. The claimant filed his application for hearing not with the Division of Workers' Compensation but with the Division of Administrative Hearings (since changed by statutory amendment to the Office of Administrative Courts). Moreover, the claimant in his application for hearing did not request the DIME be canceled. Rather he sought an order awarding permanent partial disability benefits on the grounds that the respondents had waived their right to a DIME and penalties should be assessed.
The claimant argues that an application for hearing has been found to be an objection to a final admission and therefore the application for hearing in this case should be read as an objection to the DIME. We do not disagree that no separate "contest" is necessary where an application for hearing provides written notification to the respondents that the claimant is contesting a final admission. McCotter v. U.S. West W.C. No. 4-430-792(March 15, 2001). However, as noted in McCotter the purpose of a "contest" is to alert the respondents that the claimant does not accept the respondents' final position concerning the claimant's entitlement to benefits, and to alert the respondents that there is an ongoing controversy which is not subject to resolution by administrative closure. In the present case the purpose of the provision in Rule of Procedure XIV(L)(3)(I) is that the claimant may by request to the Division, cancel the DIME. Therefore, the claimant was not without a remedy for the respondent's failure to provide medical reports and payment on a timely basis. See Romero v. Martin W.C. 4-55-141 (March 8, 2004). (The respondents were not left without a remedy for the claimant's failure to attend the DIME since they could have sought dismissal for failure to prosecute). An application for hearing does not accomplish the goal of canceling the DIME because inevitably, as seen in the present case, the hearing will almost always be held long after the DIME has taken place. We perceive no basis on which to interfere with the ALJ's finding that the claimant did not seek to cancel the DIME as provided by Rule XIV(L)(3)(I).
The claimant next argues that the ALJ award of a penalty of $25 a day, was inadequate. The ALJ determined that penalties at the rate of $25 per day were appropriate considering all the circumstances, including that the DIME was delayed due to the insurer's conduct and the insurer failed to provide any explanation for the violations and the claimant suffered no actual monetary damage. Finding Of Fact, Conclusions Of Law, and Order at 6, ¶ 10.
The ALJ has discretion to assess a penalty between one cent and $500 per day. The amount of the penalty may be based on consideration of several factors including the extent of harm to the claimant, the duration and type of violation, the insurer's motivation for the violation, the insurer's mitigation, and whether or not the misconduct is representative of a pattern of misconduct. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996); Trumble v. Choice Casing Service, Inc., W.C. No. 4-125-136 (March 29, 1996), aff'd. Choice Casing Service, Inc. v. Industrial Claim Appeals Office, Colo. App. No. 96CA0664, January 16, 1997 (not selected for publication).
Because the ALJ's authority is discretionary, we may not disturb his determination of the amount of the penalty to be imposed, in the absence of fraud or an abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). There is no assertion of fraud in this case and the legal standard for review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). The application of this standard includes consideration of whether the ALJ's determination is supported by substantial evidence and by applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Initially, we reject the claimant's contentions that are not matters of record, such as the division records regarding past penalties against the insurer and the amount of money earned by the insurer. Our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo.App. 1995). The claimant argues that the ALJ erred in finding that he did not suffer economic loss as a result of respondents' actions and that there is no evidence supporting this conclusion. To the contrary, the ALJ could reasonably infer from the absence of evidence presented by the claimant concerning any economic loss, that there was little or none.
The penalty rate imposed by the ALJ's order falls within the statutory parameters for penalties under § 8-43-304(1), and we are not persuaded by the claimant's other arguments that the penalty rate is disproportionate to any harm caused to the claimant. Under these circumstances, we conclude the ALJ did not abuse his discretion in failing to assess a penalty greater than $25.
Finally, the claimant also argues that the respondents, by their delay in satisfying the procedural requirements, lost their right to a DIME as a matter of law. In Romero v. Gerald Martin, LTD. W.C. No. 4-55-142 (March 8, 2004), we noted that although the statute imposes time limits for requesting a DIME there is no provision that establishes a time within which the DIME must be performed. Neither does the statute impose any jurisdictional bar to the conduct of a DIME if the procedures are not completed within any specified time limit. The question then becomes whether the insurer waived the right to a DIME because it was not timely conducted.
Waiver is the intentional relinquishment of a known right which may be established by conduct which evidences an intent to relinquish the right. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). The party asserting waiver bears the burden of proof. Johnson v. Industrial Commission, supra. The ALJ found that the respondents made no intentional relinquishment of their right to the DIME. See Findings Of Fact, Conclusions Of Law, and Order at 4, ¶ 4. The claimant cites nothing in the record that establishes such intentional relinquishment. We perceive no error in the ALJ's determination.
We note that the respondents in their Brief in Opposition to the petition to review, argue that the ALJ erred in granting penalties pursuant to § 8-43-304, C.R.S. 2005 since the rules violated by the respondents provide for specific penalties. However, the respondents did not file a petition to review the ALJ's order and, therefore, did not preserve the argument for appellate review. See Davila v. Merit System Council, 15 P.3d 781 (Colo.App. 2000) (any part of order that is adverse must be appealed to preserve right to further appeal). See Nelson v. King Soopers, Inc., 703 P.2d 1338 (Colo.App. 1985).
IT IS THEREFORE ORDERED that the ALJ's order dated August 11, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Marvin Moler, Peyton, CO, Colorado Springs Winwater, Colorado Springs, CO, Colorado Springs Winwater, Dayton, OH, Marianna Cozart, Liberty Mutual Insurance Company, Irving, TX, DIME, Division of Workers' Compensation — Interagency Mail, Brenda Carillo, Subsequent Injury Fund, Division of Workers' Compensation — Interagency Mail William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Jonathan S. Robbins, Esq., Denver, CO, (For Respondents).