Opinion
W.C. No. 4-358-465.
August 19, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Jones dated March 16, 2010 that denied the claimant interest, penalties, and additional temporary total disability (TTD) benefits. We affirm.
This matter has been before us previously on multiple occasions. Ultimately the claimant's claim for benefits based on her industrial injury on September 17, 1997 was reopened. In addition to certain medical benefits the claimant received TTD benefits up to the time of a motor vehicle accident on October 19, 2002, which another ALJ found to be an intervening injury.
ALJ Jones considered whether the claimant should receive additional TTD benefits after October 19, 2002, whether the claimant's average weekly wage should be increased, whether the claimant was entitled to penalties against the respondents for unpaid interest, and whether the respondents should be relieved of the obligation to pay interest.
The ALJ determined that the claimant was not entitled to an adjustment of her average weekly wage. Regarding TTD benefits, the ALJ determined that another ALJ's ruling that the claimant's motor vehicle accident severed the causal connection between the claimant's work-related injury and her disability constituted the law of the case and effectively ended the claimant's entitlement to TTD benefits. The ALJ decided that the respondents were entitled not to pay interest on past awards of TTD benefits because of the claimant's failure to more promptly pursue her claim for those benefits. The ALJ denied the claimant penalties for the respondents' failure to pay interest on TTD benefits awarded previously because the previous awards of TTD benefits did not expressly address interest. Instead, the previous awards reserved all other issues not resolved. Thus, the ALJ concluded, the respondents did not act unreasonably in not paying interest on the earlier TTD benefits awarded in this matter.
The claimant takes issue with the ALJ's denial of penalties, interest, and additional TTD benefits. We find no reversible error.
I. TTD benefits.
The claimant disputes the determination that her entitlement to TTD benefits ended when she sustained a motor vehicle accident. We note that we previously determined that the claimant was entitled to an award of TTD benefits to the time of her motor vehicle accident pursuant to the claimant's concession that her TTD benefits could properly end on that date. Caraveo v. David J. Joseph Co., W.C. N. 4-358-465 (June 8, 2009). ALJ Cannici's order dated December 24, 2008 awarded the claimant ongoing TTD benefits and our review of his order resulted in the limitation of TTD benefits to the date of her motor vehicle accident pursuant to the claimant's concessions as noted in our final order. Included in the record is a partial transcript from the hearing underlying ALJ Cannici's order. The claimant's counsel explained that the claimant sought temporary disability and medical benefits up to the time of the motor vehicle accident due to concerns regarding potential outcomes of Division-sponsored independent medical examinations that the claimant anticipated in the future. Exhibit 2. It therefore does not appear that the claimant intended to effectuate a blanket waiver of any ability to seek additional TTD benefits in the future. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver constitutes a voluntary, knowing and intelligent surrender of a known right).
The claimant first asserts that an intervening cause may not terminate TTD benefits. However, when intervening events indicate that the claimant's wage loss or impaired earning capacity results from factors other than the industrial injury, the causal connection between the injury and the wage loss is severed. Roe v. Industrial Commission, 734 P.2d 138 (Colo. App. 1986). We do not agree with the claimant that Roe is no longer good law.
The ALJ concluded that the "law of the case" doctrine bound the parties to an earlier determination by another ALJ regarding the effect if the claimant's motor vehicle accident on any future claims for TTD benefits. The law of the case doctrine is a discretionary rule, which provides that issues that have been litigated and decided ordinarily should not be relitigated in the same proceeding. Verzuh v. Rouse, 660 P.2d 1301 (Colo. App. 1982). In granting the claimant's petition to reopen ALJ Henk found that the claimant's condition worsened due to her industrial injury up to the time of her motor vehicle accident. ALJ Henk essentially found that the motor vehicle accident was an intervening injury that ended the claimant's entitlement to benefits.
The ALJ also considered the claimant's failure to appeal ALJ Henk's order reopening the claim. However, it has been held that orders which merely reopen a claim without awarding specific benefits are interlocutory and not reviewable. See Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo. App. 1986). There was no award or denial of benefits connected with the petition to reopen. Therefore, the order lacked finality.
Nonetheless, ALJ Henk found that the claimant proved that following the filing of a final admission of liability and prior to her car accident on October 19, 2002 her condition worsened due to her industrial injury. Consistent with her findings ALJ Henk therefore granted the claimant's petition to reopen "during the period between September 16, 1997 and October 19, 2002." Exhibit I at 00024D, ¶ 5. ALJ Henk entered her order pursuant to our remand to consider the claimant's petition to reopen dated February 16, 2001 and make any required findings as to whether the claimant sustained a change of condition between the filing of the final admission of liability and the claimant's car accident that can be causally connected to the claimant's original injury sufficient to justify a reopening. Caraveo v. David J. Joseph Co., W.C. N. 4-358-465 (October 25, 2006). Thus, ALJ Henk reopened the claim for the period of time between the final admission of liability (September 16, 1997) and the date of her motor vehicle accident (October 19, 2002). ALJ Cannici adhered to those findings in his subsequent order.
The claimant argues that the respondents failed to endorse the law of the case as an issue or otherwise raise the matter at hearing. However, counsel for the respondents clearly identified the prior ruling that the motor vehicle accident severed the causal connection and asserted that the ruling should be adhered to by the ALJ. Tr. at 21-23. Under the circumstances we are not persuaded to disturb ALJ's determination that the claimant is not entitled to additional TTD benefits beyond the date of her motor vehicle accident.
II. Interest
The claimant challenges the ALJ's decision to relieve the respondents from paying interest on TTD benefits awarded previously. Section 8-43-410(2), C.R.S. provides that:
Every employer or insurance carrier of an employer shall pay interest at the rate of eight percent per annum upon all sums not paid upon the date fixed by the award of the director or administrative law judge for the payment thereof or the date the employer or insurance carrier became aware of an injury, whichever date is later.
The court of appeals has noted that "[a]s a general proposition it is mandatory that the employer or insurer pay interest on all sums not paid on the date fixed by the award. . . . However, upon application and satisfactory showing, the Director has discretionary authority to relieve the employer or insurer from such interest payments." Harrison Western Corporation v. Claimants in the Matter of the Death of Hicks, 185 Colo. 142, 522 P.2d 722, 725 (1974) ( citations omitted). Thus, unless the respondents are relieved from payment of interest, it is a matter of statutory right and applies automatically to an award. Bourn v. T T Loveland Chinchilla Ranch, 514 P.2d 787 (Colo. App. 1973). Because the statute affords the ALJ broad discretion to relieve the respondents from the duty to pay interest, we may only set aside her order on the ground that she clearly abused that discretion. The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The ALJ reviewed the timing of the claimant's pursuit of TTD benefits and determined that although the claimant alleged that her condition worsened as early as February 16, 2001, she did not go to hearing on the issue of TTD benefits until about six and one-half years later on September 28, 2007. The ALJ found no reason for the delay in seeking benefits.
Interest awarded under § 8-43-410(2) is not intended to be punitive. Alstrom v. Colorado Compensation Insurance Authority, W.C. No. 3-815-100 et. seq., (January 26, 1998); Gallegos v. Green Construction Co., W.C. No. 3-033-796 (July 29, 1998). Rather the purpose is to secure to claimants the present value of benefits to which they are entitled by creating an equitable remedy for the loss of use of funds during the accrual period. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo. App. 1994); Subsequent Injury Fund v. Trevethan, 809 P.2d 1098 (Colo. App. 1991). However, the ALJ considered the substantial amount of interest accumulated over several years and, not finding the respondents responsible for the length of the delays in the proceedings, determined that it was appropriate to relieve the respondents from considerable interest liability. The ALJ's consideration of the contribution of the length of time it took for the claimant to pursue her claim for benefits to the effective amount of potential interest was a rational basis upon which to decline to impose interest under the under the circumstances. We therefore find no abuse of discretion in denying interest.
The claimant asserts that the respondents failed to properly raise the issue of relief from the payment of interest. Office of Administrative Courts' Rule of Procedure (OACRP) 20(C), 1 Code Colo. Reg. 104-3, provides that the parties must identify in a case information sheet the issues remaining for hearing. The respondents identified the payment of interest as an issue in their case information sheet. We therefore find no error in the ALJ's consideration of the respondents' request to be relieved from paying interest.
III. Penalties
The claimant argues that the ALJ erred by not imposing penalties against the respondents pursuant to § 8-43-304, which 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. The ALJ must first determine that the insurer's conduct constituted a violation of the Workers' Compensation Act, a rule, or an order. However, the conduct constituting the violation must also have been objectively unreasonable. Therefore, if the ALJ finds that a violation occurred, penalties may only be imposed if the ALJ concludes that the claimant's conduct was not reasonable under an objective standard. See, e.g., Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo. App. 1995). The reasonableness of the claimant's actions depends on whether they were predicated on a rational argument based in law or fact. Jiminez v. Industrial Claim Appeals Office, 107 P.3d 965 (Colo. App. 2003).
The claimant had the burden of proof to establish the right to the penalty. Section 8-43-201 C.R.S.; Long v. DBF, LLC, W. C. No. 4-264-006 (June 5, 1997). Whether the claimant sustained her burden of proof is a question of fact for resolution by the ALJ. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Coven v. Industrial Commission, 694 P.2d 366 (Colo. App. 1984); Seawell v. Foto Fast, Inc,. W. C. No. 4-304-561 (December 11, 1997). The claimant asserted that the respondents' failure to pay interest as required by statute violated the penalty provision. As we read the ALJ's decision, she was persuaded that the respondents acted reasonably in light of the reference in § 8-43-410(2) to the obligation to pay interest "upon the date fixed by the award of the . . . administrative law judge." The ALJ noted that the previous awards reserved issues not resolved and did not expressly address interest. The ALJ therefore concluded that it was not unreasonable for the respondents to rely on the reservations of other issues in the previous orders and not pay interest. As noted by the claimant, the ALJ effectively relied on the representations of the respondents' counsel as to the basis for not paying interest. However, we do not find in the record where the claimant ever objected to there being a factual basis for the respondents' counsel's representation that it was reasonable for the adjustor not to pay interest when it was not awarded. Tr. at 20-21. In any event, we decline to disturb the ALJ's denial of penalties under the circumstances. See Arellano v. Weathercraft Co., W.C. No. 3-796-875 (May 27, 1988) (upholding no award of interest where interest not awarded and order reserved matters not determined for future determination).
IT IS THEREFORE ORDERED that the ALJ's order dated March 16, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
VERONICA CARAVEO, 2728 WEST ILIFF AVE APT 200, DENVER, CO, (Claimant).
DAVID J. JOSEPH CO, C/O: F/K/A WESTERN METALS RECYCLING, ERIE, CO, (Employer).
LIBERTY MUTUAL INS. CO, Attn: DARLENE MINOR/KAREN THOMPSON, IRVING, TX, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
CLISHAM, SATRIANA BISCAN, LLC, Attn: PATRICIA CLISHAM, ESQ., DENVER, CO, (For Respondents).