Opinion
W.C. No. 4-780-871.
March 1, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated September 21, 2009, that determined that the claimant reached maximum medical improvement on January 9, 2009 with impairment of 22 percent of the extremity. In reaching these conclusions the ALJ ruled that the claimant waived his right to a Division-sponsored independent medical examination (DIME). The ALJ also dismissed the claimant's claim for statutory penalties against the Division's DIME unit. We affirm.
A hearing was held on the issues whether the claimant waived his right to a DIME and whether penalties should be imposed against the Division's DIME unit. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a work-related injury on August 25, 2008 and was referred to Dr. Caton, who placed him at maximum medical improvement on January 9, 2009, with impairment of 22 percent of the extremity. The respondents filed a final admission of liability consistent with Dr. Caton's opinions. The claimant filed a notice and proposal for a DIME on January 30, 2009 and after negotiations over the selection of a doctor failed, he filed an application for a DIME on March 6, 2009. The Division selected Dr. Fry as the DIME physician on April 2, 2009.
The claimant took no action to schedule a DIME with Dr. Fry. The ALJ also found that he did not move to stay the DIME while he filed an application for hearing on the issue of the propriety of the DIME selection process. The ALJ found that the claimant's actions reflected his intention to relinquish his right to the DIME and she concluded that he waived that right. Because the claimant waived his right to a DIME, the ALJ determined that the penalty claim was moot and she dismissed that issue.
The claimant appealed the ALJ's order and makes two relatively specific arguments in support of setting aside the order. Specifically, he argues that the ALJ erred in concluding that he waived his right to a DIME and also erred in dismissing the penalty claims as moot. We also note, however, that the claimant makes a number of arguments that are vague and unspecific. In this regard, he asserts "those arguments, contentions, and authority set forth or referenced in and by his previously filed Position Statement, Response to Motion to Strike Application for Hearing and Notice to Set, and attachment(s) thereto, and related pleadings and Orders herein and in the Maestas matter referred to herein, and the Ramer matter referenced to therein. . . ." He requests that we take "official notice" of these pleadings and other materials, and presumably review them with a view to extracting the "arguments, contentions, and authority" that we believe the claimant would make in the instant proceeding. The difficulties that would attend our attempts to collect these pleadings, review them, and infer from them the "arguments, contentions, and authority" that the claimant might wish to assert are considerable and would ultimately place us in the position of surrogate counsel for the claimant. We decline to serve in that role and address here only the more specific arguments presented by the claimant.
First, we perceive no error in the ALJ's determination that the claimant waived his right to a DIME.
Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion. Burlington Northern R. Co. v. Stone Container Corp. 934 P.2d 902 (Colo. App. 1997). To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit. Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); Burman v. Richmond Homes Ltd., 821 P.2d 913 (Colo. App. 1991).
The existence of a waiver is generally a factual matter for the ALJ to determine, and we must uphold her order if supported by substantial evidence in the record. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); C.R.S. 2008. 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 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 and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
A party may, through inaction, delay, or other similar conduct, waive the right to obtain a DIME. Rodriguez v. Safeway Stores, Inc., W.C. No. 4-712-019 (June 3, 2009); Gaither v. The Resource Exchange, W.C. No. 4-415-403 (June 16, 2004); Stein v. Alliance, W.C. No. 4-533-782 (October 5, 2004); Shouland v. Argenbright Security, W.C. No. 4-415-403 (June 16, 2004).
Here, we perceive no error in the ALJ's conclusion that the claimant by his conduct waived the right to obtain a DIME. The factual findings upon which the ALJ based her conclusion are supported by substantial evidence in the record. In any event, we do not understand the claimant to be arguing that those factual findings are disputed in any way. Moreover, given the claimant's failure to schedule the DIME within the statutory time period, and his failure to take any steps to stay the operation of those statutory requirements, we are unpersuaded to disturb the ALJ's order determining that the claimant waived the right to a DIME.
Additionally, we perceive no error in the ALJ's dismissal of the penalty claims. The claimant sought penalties against the Division's IME unit, which is responsible for administering the DIME program, and against two individuals who work in that unit. The ALJ concluded that because the claimant waived his right to a DIME "any penalty claim is moot." In this regard, the ALJ apparently reasoned that a waiver of the DIME also waived any complaints regarding the procedures used in setting the DIME. Under the unusual circumstances presented here, we agree that the claimant's claim for penalties was rendered moot by his waiver of the right to a DIME.
The claim for penalties was brought pursuant to § 8-43-304, C.R.S. 2009, which provides for a monetary penalty of up to $500 per day if any person "violates any provision of articles 40 to 47 of [title 8], or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel. . . ." Generally, the imposition of penalties under § 8-43-304(1) requires a two-step analysis. First, it must be determined whether a party has violated the Act in some manner, or failed to carry out a lawfully enjoined action, or violated an order. If a violation is found, it must be determined whether the violator acted reasonably. See Bettinger v. The Great Indoors, W.C. No. 4-513-392 (May 11, 2009). The reasonableness of the person's actions depends on whether the actions were predicated on a rational argument based on law or fact. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo. App. 1997). In this regard, the issue is not whether the party had a reasonable explanation for their actions. Instead, the issue is whether the failure to comply with the rule was predicated on a rational argument in law or fact that they were not required to comply with the rule. See Porras v. World Service Co., Inc., W.C. No. 155-161 (October 12, 1995).
Here, as we understand the claimant's penalty claim, he contended that the DIME unit and the individuals who work for it violated Rule of Procedure 11-3(N) and Rule of Procedure 11-10. The former provides that a motion may be made to hold a DIME in abeyance and the latter that any disputes that arise regarding a DIME may be resolved by an administrative law judge. The claimant contended that the DIME unit routinely violated those rules by refusing to stay the proceedings when an application was filed asserting some dispute regarding the DIME. Tr. at 12-13.
In some circumstances a penalty claim might survive the waiver of the substantive right that gave rise to the alleged penalty. However, here it did not. The claimant's attorney stated at the hearing that he did not seek statutory penalties against those named in his penalty claim, but rather that his goal was an order that they had been violating the rules. We surmise from the claimant's attorney's statement that he sought the order to change the behavior of the DIME unit in this and other cases. He stated, "I'm not, obviously, looking for monetary penalties against these people; I just want the practice to stop." Tr. at 13. The ALJ sought clarification of the "practice" the claimant wanted stopped and he clarified that "I'm just trying to get a fair DIME." Tr. at 13. In our view these statements constituted judicial admissions that had the effect of waiving monetary penalties under § 8-43-304. Sandoval v. Parkview Medical Center, W. C. No. 4-501-083 (May 5, 2004). Moreover, because we affirmed the ALJ's order determining that the claimant waived a DIME, the claimant's efforts to insure that "fair" procedures were used in setting that DIME were, as the ALJ concluded, moot. Since the claimant had waived his right to the DIME, he no longer had any justiciable penalty claim where it had only been brought to obtain a "fair" DIME.
IT IS THEREFORE ORDERED that the ALJ's order issued September 21, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
JESUS MUNOZ, 1415 5TH STREET, GREELEY, CO, 80631 (Claimant).
JBS SWIFT COMPANY, Attn: ROXIE GARCIA, GREELEY, CO, (Employer).
ZURICH AMERICAN, Attn: JACKIE BONAVIDA, C/O: GALLAGHER BASSET SERVICES, ENGLEWOOD, CO, (Insurer).
LAW OFFICES OF RICHARD K BLUNDELL, Attn: RICHARD K. BLUNDELL, ESQ., GREELEY, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: DOUGLAS A THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).