Opinion
W.C. No. 4-496-527
December 22, 2003
FINAL ORDER
The respondents seek review of an order entered on remand by Administrative Law Judge Jones (ALJ), which awarded additional temporary total disability (TTD) benefits and imposed penalties for the wrongful termination of TTD benefits. We affirm.
In October 2000 the claimant suffered compensable injuries to his neck, head and shoulders. The claimant was treated by Dr. Quick who referred him to the Woodridge Orthopaedic and Spine Center (Woodridge) where he underwent cervical surgery by Dr. O'Brien. During a follow-up examination at Woodridge on November 13, 2001, the claimant was seen by Dr. Enguidanos, who released the claimant to return to regular employment. Relying on the medical release by Dr. Enguidanos, the respondents filed a General Admission of Liability which terminated TTD benefits. The claimant subsequently applied for and received unemployment insurance benefits.
Dr. Quick released the claimant to modified employment on January 9, 2002. On February 4, 2002, the claimant obtained a lower paying job at King Soopers. The claimant resigned on March 16, 2002, due to neck pain. On April 28 the claimant began part-time work which paid less than his pre-injury wage. Dr. Quick placed the claimant at maximum medical improvement (MMI) on May 28, 2002.
In a prior order, the ALJ determined Dr. Enguidanos was not "the attending physician" for purposes of terminating TTD benefits under § 8-42-105(3)(c), C.R.S. 2003. Therefore, the ALJ ordered the respondents to pay various temporary total and temporary partial disability benefits from November 14, 2001 to May 28, 2002.
On review, we upheld the award of TTD benefits commencing November 14, 2001. However, we noted that Dr. O'Brien issued a medical report dated December 18, 2001, which released the claimant to regular employment. The ALJ acknowledged Dr. O'Brien's December 18 report and found Dr. O'Brien was an attending physician. However, the ALJ did not make any findings of fact concerning the respondents' contention that Dr. O'Brien was "the" attending physician as of December 18. Therefore, we concluded the ALJ's findings were insufficient to support the award of temporary disability benefits after December 17. Consequently, we set aside the ALJ's order insofar as it awarded TTD after December 17, 2001 and remanded the matter for a new order on that issue. Further, we concluded the ALJ misapplied the law in denying penalties for the wrongful termination of TTD benefits. Therefore, we directed the ALJ to redetermine the penalty issue.
On remand the ALJ found Dr. O'Brien was not "the attending" physician on December 18, 2001. Instead, the ALJ found that Dr. Quick was the "attending physician." The ALJ also found that Dr. Quick did not release the claimant to return to regular employment at any time prior to MMI. Consequently, the ALJ ordered the respondents to pay TTD benefits from November 13, 2001 to February 4, 2002.
The ALJ also found the respondents did not have a reasonable basis to rely on the opinions of Dr. Enguidanos in the termination of TTD benefits effective November 13, 2001. Therefore, the ALJ's order dated August 5, 2003, assessed penalties at the rate of $500 per day from November 14, 2001 to February 4, 2002, for the wrongful termination of TTD benefits.
I. A.
On appeal of the August 5 order the respondents renew their contention that Dr. O'Brien and his colleagues at Woodridge are attending physicians. Therefore, they argue the ALJ erred in failing to find that the release to regular employment by Dr. Enguidanos triggered the termination of temporary disability benefits effective November 13, 2001. We deny this argument based on the "law of the case doctrine."
The "law of the case" doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). Admittedly, the law of the case doctrine does not apply if the prior ruling results in error or is no longer sound because of changed conditions resulting in manifest injustice. People v. Roybal, 672 P.2d 1003 (Colo. 1983); Verzuh v. Rouse, supra. Those circumstances are not present here.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 2003. Once established, benefits continue until the respondents prove grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Section 8-42-105(3)(c) provides that TTD benefits terminate when "the attending physician gives the claimant a written release to return to regular employment." The courts have held that the term " attending physician," as used in § 8-42-105(3)(c), means a physician within the chain of authorization who takes care of the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). The Popke court added that although the claimant may have multiple attending physicians, the statute do not authorize a release by "any" attending physician. Rather, a release to return to regular employment is not effective unless it is issued by "the attending physician."
The identity of " the" attending physician is a question of fact for determination by the ALJ. Popke v. Industrial Claim Appeals Office, supra. We must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Our order of remand explicitly upheld the ALJ's finding that Dr. Enguidanas was not "the attending physician" for purposes of § 8-42-105(3)(c). Consequently, we affirmed the award of TTD benefits for the period November 14, 2001 through December 17, 2001. The respondents did not appeal that portion of our order. Consequently, our conclusion that the respondents failed to prove grounds for the termination of TTD effective November 13, 2001 is the law of the case.
The respondents further arguments do not persuade us to depart the conclusions in our order of May 19. Therefore, we adhere to our prior conclusion that the November 13 opinions of Dr. Enguidanos were legally insufficient to terminate TTD benefits effective November 13, 2001.
B.
Similarly, we reject the respondents' challenge to the ALJ's finding that Dr. O'Brien was not "the attending physician" as of December 18, 2001, when he released the claimant to regular employment. The ALJ found that after the cervical surgery in July 2001, the claimant's relationship with Dr. O'Brien became strained and consequently, Dr. O'Brien did not examine the claimant during his appointment on November 13.
In contrast, the ALJ found that Dr. Quick treated the claimant on a consistent basis from October 2000 to May 2002, and monitored the claimant's ongoing treatment and medication. (Finding of Fact 1). The ALJ also found that the claimant turned over the medication prescribed by Dr. Enguidanos to Dr. Quick. In addition, the ALJ also found Dr. Quick was responsible for the issuance of work restrictions and that physicians at Woodridge deferred to Dr. Quick on this issue. (Finding of Fact 5).
The respondents' arguments notwithstanding, the ALJ's pertinent factual determinations are supported by substantial evidence and plausible inferences drawn from the record. Therefore, these factual determinations are binding on review. Section 8-43-301(8); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001). Further, the ALJ's findings support the conclusion that the December 18 release to regular employment by Dr. O'Brien was not sufficient to terminate TTD benefits. Section 8-42-105(3)(c).
C.
Alternatively, the respondents contend the award of TTD benefits was erroneous because the claimant applied for and received unemployment insurance benefits. Again we disagree.
As stated above, the termination of TTD is governed by § 8-42-105(3). An application for unemployment benefits is not one of the events listed in § 8-42-105(3) which terminates TTD benefits. Rather, the claimant's ability to perform modified employment does not support the termination of TTD benefits unless claimant actually returns to modified employment or employment within the claimant's medical restrictions is offered but rejected by the claimant. Section 8-42-105(3)(b) and § 8-42-105(3)(d); Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998).
Here, there is no finding or assertion that the claimant began modified employment prior to February 4, 2002 or that he failed to begin an offer of modified employment within the restrictions imposed by Dr. Quick. Consequently, the claimant's willingness to seek work or apply for unemployment compensation did not preclude the award of TTD benefits between December 18 and February 4, 2002.
D.
Next, the respondents contend the cause of the claimant's temporary disability after February 4, 2002, was a compensable aggravation during his employment at King Soopers. The ALJ was not persuaded and we perceive no basis to disturb her determination on the causation issue. (Finding of Fact 9).
The respondents are only liable for the "direct and natural" consequences of the work-related injury. An intervening injury may sever the causal connection between the injury and the claimant's temporary disability if the claimant's disability is triggered by the intervening injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970).
The existence of an "intervening event" is an affirmative defense to the respondents' liability. Consequently, it is the respondents' burden to prove that the claimant's condition is attributable to a subsequent intervening injury and not the original industrial injury. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163 (Colo.App. 1983).
Whether the respondents sustained their burden to prove that the claimant's disability was triggered by an intervening injury is a question of fact for resolution by the ALJ. City of Aurora v. Dortch, 799 P.2d 462 (Colo.App. 1990). Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8).
The respondents argue the claimant suffered a "substantial, permanent aggravation" of his industrial injuries during the employment at King Soopers. However, the substantial permanent aggravation test only applies where the claimant suffered an occupational disease and was injuriously exposed to the hazards of the disease in successive employments or involving successive insurers. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, there is no finding the claimant's original industrial injury was an "occupational disease." Further, the claimant's testimony and the medical evidence support the ALJ's finding that the claimant left the employment at King Soopers due to the effects of the original injury not an intervening injury at King Soopers. ( See Tr. p. 35). Therefore, we reject the respondents' argument that there was no causal connection between the claimant's disability and the industrial injury after February 4, 2002.
II.
The respondents also contest the ALJ's imposition of penalties for the wrongful termination of TTD benefits. We perceive no reversible error.
Section 8-43-304(1), C.R.S. 2003, allows an ALJ to impose penalties against an insurer who fails to comply with the Rules of Procedure. See Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). Where a violation of the Rules of Procedure is found, the violator is liable for penalties if the violator's actions were objectively unreasonable based on the actions a reasonable insurer would take under similar circumstances. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003).
The Rules of Procedure, Part IX(C)(1)(b), 7 Code Colo. Reg. 1101-3 at 34, provides that an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability form which is accompanied by;
"A medical report from the authorized treating physician who has provided the primary care stating the claimant is able to return to regular employment." (Emphasis added).
As argued by the respondents, the ALJ previously determined the respondents had a rational argument to believe Dr. Enguidanos was an "attending physician" for purposes of terminating TTD. Consequently, the ALJ denied the request for penalties. However, on appeal we concluded that the ALJ's order did not resolve the pertinent issue which was whether it was objectively reasonable for the respondents to believe Dr. Enguidanos was the physician who had "provided the primary care." Therefore, our Order of Remand explicitly directed the ALJ to enter new findings of fact which reflect his consideration of the proper legal standard. For these reasons, we reject the respondents' various arguments that the ALJ was bound by his previous findings of fact on the penalty issue.
On remand the ALJ did not explicitly determine whether Dr. Enguidanos was a "primary care provider." However, ALJ determined the respondents did not reasonably infer that Dr. Enguidanos was an "attending physician." Based upon this finding it necessarily follows that the respondents could not reasonably view Dr. Enguidanas as the attending physician who was providing the "primary care." Popke v. Industrial Claim Appeals Office, supra.
As stated in our Order of Remand, the record supports the ALJ's finding that the respondents had no reasonable basis to believe Dr. Enguidanos was the attending physician such that the respondents could rely on his opinions to terminate TTD benefits. Therefore, the ALJ did not err in finding the respondents are subject to penalties.
However, the respondents contend the assessment of penalties at the rate of $500 per day is an abuse of discretion. In particular, the respondents argue there is no evidence of any "aggravating" factors to justify the imposition of penalties at the maximum rate allowed by law.
Section 8-43-304(1) affords the ALJ discretionary authority to impose a penalty of up to $500 a day, for each day an insurer fails to comply with a rule of procedure. 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 determinations are supported by applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
At the hearing on October 23, 2002, the respondents did not present any evidence of mitigating factors in the unilateral termination of TTD benefits. Furthermore, as we read the ALJ's order, she imposed penalties at the rate of $500 a day based upon her assessment that the respondents chose to unilaterally terminate the claimant's TTD benefits based upon the opinion of a physician who only provided brief medical services to the claimant when the medical history showed that Dr. Quick was the primary care physician. Under these circumstances, the ALJ could in fer that the maximum daily penalty was justified. Consequently, we decline to conclude that the ALJ's imposition of penalties at a rate of $500 per day exceeds the bounds of reason. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Pueblo School District No. 70 v. Toth, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated August 5, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 22, 2003 to the following parties:
Richard Herb, 1932 Ance St., Strasburg, CO 80136
Dawn Manning, Mariner Post Acute Network, One Ravinia, #1500, Atlanta, GA 30346
American Home Insurance, c/o Tina Gustafson, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Michael D. Brown, Esq., 8089 Pierson Ct., Arvada, CO 80005 (For Claimant)
Dennis Gunther, Esq., 4800 Wadsworth Blvd., #118, Wheat Ridge, CO 80033 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado