Opinion
W.C. No. 4-707-738.
February 24, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 21, 2008 that imposed penalties against the claimant under § 8-43-304(1), C.R.S. 2008, for violation of an order entered by a Prehearing Administrative Law Judge (PALJ). We affirm.
The ALJ made the following pertinent findings of fact. The insurer requested medical, employment, insurance, Social Security, and unemployment releases from the claimant. Exhibit B. The insurer filed a Motion to Compel the claimant to execute the releases, contending that the claimant had not provided the requested releases. Exhibit C. On June 12, 2008, a PALJ entered an order granting the insurer's motion to compel and ordered the claimant to execute and return "unqualified" releases within five days of the order. On June 19, 2008, by letter from the claimant's counsel, redacted releases were sent to the insurer. Exhibit E. The releases were not unqualified. Exhibit 1. The releases contained limitations to prevent the disclosure of information concerning certain health conditions, to limit the dates of the records, and to prohibit re-disclosure of the medical reports obtained. Exhibit 1. The claimant did not seek reconsideration of the PALJ's order or a protective order. The insurer filed an application for hearing endorsing the issue of penalties. The claimant did not file a response to the application for hearing or seek review of the PALJ's order. The ALJ concluded that the claimant did not provide unqualified medical record releases as she was specifically compelled to do by the PALJ's order and that the claimant's violation of the PALJ's order was not objectively reasonable. The ALJ further found the claimant's action in providing the insurer with redacted releases in light of the PALJ's order was not predicated upon a rational argument based in law or fact. The ALJ imposed penalties on the claimant on a sliding scale for the periods of non-compliance with the PALJ's order for a total penalty of $4,980. The claimant appeals the imposition of penalties.
The ALJ had authority to assess penalties against the claimant for claimant's refusal to comply with the order of the PALJ. Kennedy v. Industrial Claim Appeals Office 100 P.3d 949 (Colo.App. 2004). In Kennedy, the court determined that a party may not elect, without the risk of consequences, to ignore a ruling of a PALJ. Here, the issue before the ALJ at the time of the hearing on penalties was whether penalties should be imposed on the claimant for failure to obey an order issued by the PALJ. Under § 8-43-304(1), C.R.S. 2008, the ALJ may impose penalties of up to five hundred dollars per day when an individual fails, neglects or refuses to obey any lawful order made by the panel or director. Holliday v. Bestop Inc. 23 P.3d 700 (Colo. 2001). See also § 8-43-207.5(3), C.R.S. 2008 (PALJ's order is an order of the Director).
For purposes of § 8-43-304(1), a party neglects to obey an order if it fails to take the action a reasonable person would take to comply with the order. Jiminez v. Industrial Claim Appeals Office 107 P.3d 965 Colo. App. 2003). Thus, the claimant's conduct is measured by an objective standard of reasonableness. Jiminez v. Industrial Claim Appeals Offic. supra. The reasonableness of the claimant's action depends on whether it was predicated on a rational argument based in law or fact. See Diversified Veterans Corporate Ctr. v. Hewuse, 942 P.2d 1312 (Colo.App. 1997).
Generally, determination of the reasonableness of the party's conduct is a question of fact for the ALJ. Jiminez v. Industrial Claim Appeals Offic. supra. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999).
The ALJ in his penalty order noted that the claimant had not sought reconsideration of the PALJ's order, requested review of the PALJ's order, or filed a motion for a protective order. Nor did claimant request a stay of the PALJ's order pending review by an ALJ. Instead, the ALJ found in his penalty order that the claimant simply took it upon herself to provide the insurer with the form of medical record releases she deemed appropriate. The ALJ concluded that that action was not reasonable. In our view, the ALJ's conclusion is based on plausible inferences drawn from the record.
The claimant argues that the ALJ erred in awarding penalties because the same ALJ later granted a Motion for a Protective Order, which provided her with relief from providing "unqualified" releases. The claimant attaches to her brief a Protective Order from ALJ Friend dated November 12, 2008, which limited the scope of the medical releases at least partially along the lines of the claimant's redacted releases.
We first note that the claimant's Motion for a Protective Order was not filed until after the penalty order here under review was entered. Further, in our view, the ALJ's later action in granting the claimant's motion for a protective order does not persuade us that the ALJ as a matter of law erred in originally granting penalties for failure to comply with the PALJ's order. Instead, here the ALJ, in determining whether the claimant's conduct was reasonable, focused on the claimant's actions in simply ignoring the PALJ's order and taking it upon herself to provide the insurer with whatever form of medical record release she deemed appropriate. Under these circumstances, we perceive no basis on which to interfere with the ALJ's determination to impose penalties for failure to obey a lawful order of the PALJ.
Here the ALJ imposed penalties under § 8-43-304(1) for the claimant's failure, neglect or refusal to obey any "lawful order" made by the PALJ. We do not understand the claimant to contend that the PALJ's order was "unlawful." In any event the PALJ's order here which compelled the claimant to execute the releases for medical records is clearly within the contemplation of powers given to PALJ's pursuant to § 8-43-207.5 C.R.S. 2008. The claimant's argument that a protective order might properly be entered placing restrictions on the releases was obviously later found to be persuasive by the ALJ. However, that does not alter the fact that the ALJ could and did properly find that imposition of penalties was appropriate under the circumstances of this case for the claimant's failure to comply with the PALJ's order.
The claimant contends that the ALJ erred in finding that the claimant did not object to or otherwise respond to the insurer's May 27, 2008 Motion to Compel. The claimant contests this finding by pointing to her June 12, 2008 Response to the Motion to Compel. Exhibit 2. However, we note that the claimant's response was not filed within ten days of the insurer's Motion to Compel. Office of Administrative Courts' Rule of Procedure (OACRP) Rule 16(E) provides that a response or an objection to a motion must be filed within 10 days of the date of mailing or delivery of the motion. Here, the PALJ's June 13, 2007 Order specifically states that after reviewing the pleadings and "having received no timely objection" the PALJ granted the insurer's Motion to Compel.
The claimant did argue at the time of the hearing before the ALJ that her action in providing only redacted releases was appropriate under the holding of Alcon v. Spicer, 113 P.3d 735 (Colo. 2005). Alcon involved a civil action brought by a personal injury plaintiff where the trial court had ordered blanket releases of medical records. In Alcon, the court determined that the trial court's order was overbroad because it encompassed medical records unrelated to the injuries and damages claimed by the plaintiff. The Alcon court determined that trial court abused its discretion by issuing such a broad order and that the order should have been tailored to the scope of the waiver of the physician-patient privilege, meaning it should have been tailored to the injuries and damages claimed by the plaintiff.
However, we note in Alcon the plaintiff had first sought protective orders for several categories of records sought by the defendant and then after failing at the trial court level brought an original proceeding pursuant to C.A.R. 21 petitioning the Supreme Court of Colorado for review of the lower court's ruling. In contrast, here there was substantial evidence to support the ALJ's finding that the claimant had not timely requested protection before the PALJ in response to the respondents' motion to compel. Further, after receiving the adverse ruling from the PALJ the claimant did not appeal or seek reconsideration of the PALJ's order or request a protective order. Instead, the claimant simply provided a restricted release in defiance of the PALJ's order. The fact as noted above, that restriction on the releases might appropriately have been granted does not change our view that the action of simply ignoring the PALJ's order, compelling the claimant to provide unrestricted releases, might properly be the subject of imposition of penalties. In our opinion, the ALJ's order reflects consideration of relevant factors including the claimant's disregard of the PALJ's authority to order discovery. See Martinez v. Weicker Transfer and Storage, W.C. No. 3-782-459 (January 09, 2004).
In claimant's brief counsel for the claimant argues that she was instructed by her client not to provide the respondents with unqualified releases and that claimant's counsel therefore did not intentionally violate the PALJ's order. However, here the ALJ's order imposed the penalty on the claimant rather than on the claimant's counsel. Therefore, in our view, the intentions or state of mind of the claimant's attorney is not relevant.
The ALJ's findings are sufficient to permit appellate review. The ALJ's findings are amply supported by substantial evidence in the record and the ALJ correctly applied the law in imposing penalties. Accordingly, we perceive no basis on which to disturb the ALJ's order. IT IS THEREFORE ORDERED that the ALJ's order issued October 21, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
CARLSON HOLDINGS, INC., C/O: DBA TGI FRIDAYS, DENVER, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: MS WENDY STALKFLEET, C/O: BROADSPIRE, DENVER, CO, (Insurer).
GAIENNIE LAW OFFICES LLC, Attn: JAIME L. BAXTER, ESQ., DENVER, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: STACY J TARLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).