Division of Workers’ Compensation 633 17th Street, Suite 400 Denver, CO 80202-3660 303-318-8700 February Case Law Update Presented by Judge Craig Eley and Judge David Gallivan This update covers COA and ICAO decisions issued from January 8, 2020 to January 31, 2020 Industrial Claim Appeals Office Espinoza v. Baker Concrete Construction ............................ 54 Rudolph v. Littleton Public Schools ................................. 62 Kaur v. King Soopers Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Click here to subscribe to the Case Law Update mailing list. The Case Law Update is offered as an educational and informational program. The discussions and commentary should not be considered a policy statement by the Division of Workers’ Compensation or an indication of how the presenters would rule on any future pending cases. Court of Appeals Henry v. ICAO .................................................. 2 Pella Windows v. ICAO ............................................ 20 Prehearing Orders Social Media PHO ................................................ 77 Surveillance PHO................................................. 81
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Division of Workers’ Compensation633 17th Street, Suite 400Denver, CO 80202-3660303-318-8700
February Case Law UpdatePresented by Judge Craig Eley and Judge David GallivanThis update covers COA and ICAO decisions issued from
Click here to subscribe to the Case Law Update mailing list.
The Case Law Update is offered as an educational and informational program. The discussions and commentary should not be considered a policy statement by the Division of Workers’
Compensation or an indication of how the presenters would rule on any future pending cases.
such a diagnosis. Other findings were mixed: a thermogram test
Dr. Schakaraschwili ordered was abnormal but a “three-phase bone
scan . . . was not suggestive for [CRPS].” Dr. Schakaraschwili noted
that two abnormal test results were required to confirm CRPS.
However, claimant declined to undergo a QSART test, which could
have confirmed or ruled out a CRPS diagnosis, because she feared
the test would cause her lupus to flare. Consequently, Dr.
Ramaswamy noted, any CRPS diagnosis remained “questionable” as
of December 2014.
¶ 7 As both the Panel and the ALJ detail in their respective orders,
claimant continued to treat with Dr. Ramaswamy for many months.
As part of that treatment, Dr. Ramaswamy referred claimant to
other physicians for additional treatment and evaluation including
Dr. Barry Ogin, to whom he sent claimant in February 2015 for a
consultation and possible sympathetic nerve block. Dr. Ogin
opined that CRPS was “possible,” but did not diagnose the
condition. He noted that there was a “possible psychological
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contribution to the patient’s current condition,” but reported
claimant “was surprisingly incredibly resistant to any suggestion of
pain psychology evaluation.” Given the indeterminate tests and
possible psychological component, Dr. Ogin questioned whether
claimant had CRPS:
I have discussed the case extensively with Dr. Ramaswamy. She has a paucity of objective pathology. The thermography study was somewhat positive, but this could be influenced by other factors. It is certainly possible that she may have underlying CRPS, but that her pain conditions may also be highly influenced by anger, stress, anxiety or other psychological barriers.
¶ 8 In April 2015, Dr. Floyd Ring conducted an independent
review of claimant’s medical records. He found claimant’s potential
CRPS a “questionable diagnosis” based on the “inconsistent
findings” of several tests and concluded that “there does not appear
a diagnosis regarding the subjective pain complaints of the left
lower extremity.” He opined that although the records suggested
“some relatively minor changes of the left knee . . . these again may
be related to her age and body habitus.” He therefore concluded
that he could not “state within [a reasonable] degree of medical
probability [that] those findings are related to her [work-related]
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injury.” Dr. Ramaswamy disagreed, noting that the triple phase
bone scan, a “plain X-ray,” and a positively therapeutic sympathetic
block were all suggestive of CRPS.
¶ 9 In June 2016, Dr. Ring reviewed additional medical records.
Based on his review of the additional records, Dr. Ring opined that
claimant had reached maximum medical improvement (MMI) as of
June 20, 2016. He recommended additional sympathetic blocks “as
maintenance therapy,” but opined that “[l]umbar spine injections
would not be related to the injury.”
¶ 10 Dr. Ramaswamy disagreed that claimant’s low back pain was
unrelated to her work injury. Nevertheless, he placed claimant at
MMI not long thereafter, on July 6, 2016. He assigned her an
impairment rating of 15% of the whole person “based on station and
gait abnormality.”
¶ 11 Employer retained Dr. Lawrence Lesnak to perform an
independent medical examination. After examining claimant and
reviewing her lengthy medical records, Dr. Lesnak observed that
[d]espite the seemingly, fairly ‘trivial’ incidentto her left ankle, the patient developedsubjective complaints of progressive diffusesevere symptoms throughout primarily her leftleg despite treatments. She was given a
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presumptive diagnosis of a possible complex regional pain syndrome involving her left lower extremity. However, she has never had any specific documented exam findings to correlate with such a diagnosis.
He listed the tests claimant underwent which failed to establish
CRPS: (1) a triple bone scan that showed only “very subtle
abnormalities, which are certainly not conclusive for a diagnosis of
CRPS”; (2) electrodiagnostic evaluation which “revealed no
neurologic abnormalities whatsoever”; and (3) thermogram testing
which “suggested a possible diagnosis of subtle CRPS . . . but . . did
not meet any type of ‘strong’ diagnostic criteria.” Dr. Lesnak agreed
claimant reached MMI no later than July 6, 2016, but found “no
permanent functional impairment involving her left ankle, left knee,
left hip, or low back whatsoever that would pertain to the
occupational incident of 08/13/2014,” and gave her a 0%
impairment rating for her work injury.
¶ 12 Dr. Rachel Basse conducted a second independent medical
examination which substantiated Dr. Lesnak’s conclusions. She,
too, questioned any CRPS diagnosis, writing that “the actual
objective study results, including Stress Thermogram, Triple Phase
Bone Scan, and plain x-rays . . . are all negative and do not support
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the diagnosis of CRPS.” She pointed out that claimant’s possible
CRPS diagnosis was at least partly based on “erroneous history”
claimant self-reported and criticized Dr. Ramaswamy for “initially
misinterpret[ing] the early test results.” She acknowledged that
claimant reported positive response to a sympathetic block but
noted this was a “subjective symptom report and not as reliable.”
Dr. Basse therefore concluded that there “is no objective evidence
that [claimant] had or has confirmed CRPS.”
¶ 13 A DIME was later performed by Dr. John Sacha. Although he
reviewed claimant’s medical records, Dr. Sacha made several errors
in conveying claimant’s medical history. Notably, he inaccurately
reported that claimant had undergone a QSART test with
“essentially borderline findings,” but he failed to mention the
thermogram test claimant actually underwent. He also erroneously
stated claimant received an injection from a Dr. Failinger, and
incorrectly reported that claimant underwent massage therapy and
acupuncture with Dr. Bondi, as well as “physical therapy which she
did for six weeks.”
¶ 14 However, on the salient issues pertaining to causation, MMI,
and impairment, Dr. Sacha made the following findings:
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• Claimant’s lumbar radiculopathy was unrelated to her
work injury and instead attributable to her 2012 motor
vehicle accident.
• He found “no allodynia, hyperpathia, or skin trophic
changes. Equal temperatures in both lower extremities”
when he examined claimant and therefore concluded
there was “no evidence of CRPS.” He opined that
claimant “does not meet any of the criteria and does not
have any findings on exam consistent with this.”
• He agreed with Dr. Ramaswamy that claimant reached
MMI on July 6, 2016. And,
• He assigned claimant an impairment rating of 11% for
loss of range of motion to her left knee and 8% for loss of
range of motion of her left hindfoot, for a combined
impairment rating of 18% of the lower extremity, which
could be converted to a 7% impairment of the whole
person. (We note that the combined totals of the
impairment ratings were derived from a chart in the
medical guidelines).
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Employer filed a final admission of liability based on Dr. Sacha’s
MMI determination and impairment rating.
¶ 15 Claimant then applied for a hearing to overcome the DIME.
She argued that Dr. Sacha’s DIME report was “replete with errors
such that one wonders if Dr. Sacha confused the examination with
the examination of another patient.” Claimant identified “incorrect
dates, incorrect reporting of tests that didn’t occur, incorrect
chronology of events, incorrect reporting of what the records
contain and either mistakes in not recording significant records or
intentionally ignoring significant records in the file,” which, she
argued, demonstrated that Dr. Sacha’s report was incorrect.
¶ 16 The ALJ acknowledged Dr. Sacha’s errors, but concluded that
the errors did not affect his opinions because he did not rely upon
any of the inaccuracies in reaching them. The ALJ found that
several physicians agreed with Dr. Sacha’s conclusions:
• On MMI: Drs. Ramaswamy, Ring, and Lesnak all agreed
claimant reached MMI in July 2016.
• On CRPS: “Drs. Schakaraschwili, Ogin, Ring, and Lesnak
credibly and persuasively opined that, while the results
of thermography tests were somewhat positive, they were
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not strongly diagnostic, and could have been influenced
by [c]laimant’s medical history and other conditions,” as
did Dr. Basse who unequivocally stated that claimant
does not have confirmed CRPS.
• On the lumbar spine: “Drs. Ring, Lesnak and Basse
credibly and persuasively opined [c]laimant did not
sustain any work-related impairment of her spine.”
Relying on these corroborating medical opinions, the ALJ
determined that claimant failed to overcome Dr. Sacha’s DIME
conclusions.
¶ 17 Instead, the ALJ found that employer had overcome Dr.
Sacha’s 18% impairment rating of the left lower extremity. The ALJ
credited Dr. Lesnak’s opinion that claimant sustained no
permanent impairment as a result of her work-related fall over Dr.
Sacha’s 18% impairment of the lower extremity. Based on these
findings and conclusions, the ALJ ordered that claimant had
reached MMI in July 2016 with a zero percent impairment rating
and denied her request for ongoing disability benefits.
¶ 18 On review, the Panel upheld the ALJ’s order because
substantial evidence supported it. The Panel noted that “[a]lthough
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one may vociferously disagree with the opinions of the various
physicians involved in this claim, including the DIME, these
opinions serve as substantial evidence upon which the ALJ properly
relied.” In addition, the Panel wrote, the existence of contrary
evidence “does not afford us ground to grant appellate relief.”
Claimant now appeals.
II. Analysis
¶ 19 Claimant contends that the ALJ’s failure to resolve certain
conflicts in the evidence warranted setting aside the order and that
the Panel erred by not doing so. Zeroing in on Dr. Sacha’s DIME
report, she characterizes it as “riddled with mistakes, erroneous
references, and omissions” which render it unreliable. She
contends that the ALJ failed to resolve “what Dr. Sacha even
reviewed during the DIME process.” Therefore, she argues, the ALJ
should have found it highly probable that the DIME was incorrect
and that she overcame it. None of these arguments provide us with
grounds to set aside the Panel’s order.
A. Law Governing the DIME Process and Standard of Review
¶ 20 A DIME physician’s opinions concerning MMI and impairment
of the whole person are binding unless overcome by clear and
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convincing evidence. § 8-42-107(8)(b)(III), C.R.S. 2019. “Clear and
convincing evidence means evidence which is stronger than a mere
‘preponderance’; it is evidence that is highly probable and free from
serious or substantial doubt.” Metro Moving & Storage Co. v.
Gussert, 914 P.2d 411, 414 (Colo. App. 1995). Thus, a party
seeking to overcome a DIME’s whole person impairment rating must
present “evidence demonstrating it is ‘highly probable’ the DIME
physician’s rating is incorrect. Therefore, to overcome the DIME
physician’s opinion, the evidence must establish that it is incorrect.
Such evidence must be unmistakable and free from serious or
substantial doubt.” Leming v. Indus. Claim Appeals Office, 62 P.3d
1015, 1019 (Colo. App. 2002) (citations omitted).
¶ 21 As found by the ALJ, the DIME’s impairment rating pertaining
to claimant’s left lower extremity fell under the rubric of scheduled
injuries enumerated in section 8-42-107(2). This impairment rating
could therefore be overcome by the lower preponderance of the
evidence standard. “The Workers’ Compensation Act [Act] classifies
work-related injuries as either scheduled or non-scheduled injuries.
Scheduled injuries are those listed in [section] 8-42-107(2). Non-
scheduled injuries are those that are not listed or that are excluded
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from the statutory schedule.” Delaney v. Indus. Claim Appeals
Office, 30 P.3d 691, 693 (Colo. App. 2000). Although a DIME
physician’s opinion concerning a whole person impairment is
granted presumptive weight, see Meza v. Indus. Claim Appeals
Office, 2013 COA 71, ¶ 15, such presumptive weight is not granted
a DIME physician with respect to the impairment of scheduled
injuries. See Delaney, 30 P.3d at 693 (recognizing that the
requirement that “a DIME finding as to permanent impairment . . .
be overcome . . . by clear and convincing evidence . . . appl[ies] only
to non-scheduled impairments”).
¶ 22 Whether a party has overcome the DIME physician’s opinion is
a question of fact to be resolved by the ALJ. Metro Moving &
Storage, 914 P.2d at 414. Consequently, we may not set aside the
ALJ’s determination that claimant failed to overcome the DIME if it
is supported by substantial evidence in the record. See § 8-43-308,
C.R.S. 2019.
¶ 23 “Substantial evidence is that quantum of probative evidence
which a rational fact-finder would accept as adequate to support a
conclusion, without regard to the existence of conflicting evidence.”
Metro Moving & Storage, 914 P.2d at 414. “In applying this
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standard, we must view the evidence as a whole and in the light
most favorable to the prevailing party, deferring to the ALJ’s
credibility determinations and resolution of conflicting evidence.”
Benuishis v. Indus. Claim Appeals Office, 195 P.3d 1142, 1145
(Colo. App. 2008).
B. Substantial Evidence Supports the ALJ’s Findings
¶ 24 Claimant contends that the ALJ failed to resolve conflicts in
the evidence created by Dr. Sacha’s errors. Although the ALJ noted
the mistakes, claimant characterizes the ALJ’s resolution as “not
sufficient . . . to just speculate that because Dr. Sacha never
mentioned these phantom records again that these erroneous
records have not affected the outcome of the DIME in a significant
way making it highly probable that it is incorrect.”
¶ 25 But as detailed above, Dr. Sacha’s opinions — that claimant
does not suffer from CRPS and that any back injury she may have
is unrelated to her work injury — were echoed by several other
physicians, including Drs. Basse, Lesnak, Schakaraschwili, Ring,
and Ogin. Claimant does not question what records these other
physicians reviewed, and no evidence suggests that any of their
reports contain errors, yet all of them reached the same conclusion
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as Dr. Sacha: that claimant had reached MMI, did not have CRPS,
and that her back injury was unrelated. Given the extensive
corroboration of Dr. Sacha’s opinions, we, like the ALJ and the
Panel, cannot say that whatever errors Dr. Sacha may have made in
his reporting affected his ultimate opinions.
¶ 26 More importantly, the ALJ considered the errors in her
thorough order and found that the mistakes did not affect Dr.
Sacha’s conclusion. The ALJ weighed Dr. Sacha’s opinion with and
against the opinions of the numerous medical experts who had
offered their opinions regarding claimant’s condition. Having
considered all the medical evidence, the ALJ credited Dr. Sacha’s
opinions — as corroborated by Drs. Basse, Lesnak,
Schakaraschwili, Ogin, and Ring — over contrary opinions
expressed by Dr. Ramaswamy.
¶ 27 “It is solely within the ALJ’s discretionary province to weigh
the evidence and determine the credibility of expert witnesses.”
Youngs v. Indus. Claim Appeals Office, 2012 COA 85M, ¶ 46. We
therefore cannot disturb this credibility determination unless the
evidence is “overwhelmingly rebutted by hard, certain evidence” to
the contrary. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558,
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561 (Colo. App. 2000); see also Youngs, ¶ 46 (“Nor may we set aside
a ruling dependent on witness credibility where the testimony has
not been rebutted by other evidence.”). The weight to be given
expert medical testimony is within the ALJ’s sound discretion. See
¶ 28 Accordingly, we conclude that substantial evidence supports
the ALJ’s findings on MMI, impairment, causation, and the scope of
claimant’s related injuries. Notwithstanding claimant’s contention
that Dr. Sacha’s errors warrant finding the DIME report incorrect,
given the wealth of evidence corroborating his opinion we perceive
no error in the Panel’s affirmance of the ALJ’s decision. See Metro
Moving & Storage, 914 P.2d at 414.
III. Challenge to the DIME System
¶ 29 Last, claimant suggests that the regulations governing the
DIME disadvantage parties attempting to overcome the DIME
because the rules do not “require any specific recitation of history
taken, records reviewed, physical exam given, clinical findings, or
any other aspects of the medical examination in the narrative
report.” However, we decline to address this issue. Although
claimant suggests injured workers are “saddled with the clear and
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convincing” burden of proof in trying to establish that a DIME
report is incorrect, she neither develops this argument further nor
offers any authority supporting her assertion. It is not the role of
this court to construct or address arguments merely hinted at by a
party, and we therefore decline to address this issue further. See
Meza, ¶ 38; Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604
(Colo. App. 2007) (declining to address “underdeveloped
arguments”).
IV. Conclusion
¶ 30 The order is affirmed.
JUDGE WEBB and JUDGE TOW concur.
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SUMMARY January 16, 2020
2020COA9
No. 18CA1908, Pella Windows v. ICAO — Labor and Industry — Workers’ Compensation — Independent Contractors
A division of the court of appeals considers whether the
independent contractor analysis adopted by the Colorado Supreme
Court in Industrial Claim Appeals Office v. Softrock Geological
Services, Inc., 2014 CO 30, an unemployment case, also applies in
the workers’ compensation context and must be considered when
determining whether an injured worker is an independent
contractor for purposes of the Workers’ Compensation Act. The
division concludes that the Softrock analysis applies.
The division further concludes that once an administrative law
judge has weighed the statutory and Softrock factors, the
administrative law judge’s findings and determinations regarding
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
DATE FILED: January 16, 2020 CASE NUMBER: 2018CA1908
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independent contractor status cannot be set aside if substantial
evidence supports them.
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COLORADO COURT OF APPEALS 2020COA9 Court of Appeals No. 18CA1908 Industrial Claim Appeals Office of the State of Colorado WC No. 4-950-181 Pella Windows & Doors, Inc.; and Pinnacol Assurance, Petitioners, v. Industrial Claim Appeals Office of the State of Colorado and Christopher Pierce, Respondents.
ORDERS SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE RICHMAN Dailey and Brown, JJ., concur
Announced January 16, 2020
Harvey D. Flewelling, Denver, Colorado, for Petitioners No Appearance for Respondent Industrial Claim Appeals Office Burg Simpson Eldredge Hersh & Jardine, P.C., John M. Connell, Brian Matise, Nelson Boyle, Englewood, Colorado, for Respondent Christopher Pierce
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¶ 1 In this case, we consider whether the independent contractor
test adopted by the Colorado Supreme Court in Industrial Claim
Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30, an
unemployment case, applies to workers’ compensation actions. We
determine that the Softrock standard applies but conclude that the
Industrial Claim Appeals Office (Panel) exceeded its authority by
disregarding the findings of fact made by the administrative law
judge (ALJ). We therefore set aside the Panel’s orders and remand
with directions to reinstate the full findings of fact, conclusions of
law, and order issued by the ALJ on November 25, 2015.
I. Background Facts
¶ 2 Claimant, Christopher Pierce, began employment as a service
technician for employer, Pella Windows & Doors, Inc., in June
2008. In March 2009, Pella laid off its entire team of seventeen
service technicians. Immediately thereafter, claimant was one of
nine service technicians offered a “service contract” with Pella,
which he accepted. Pella signed a contract with claimant called the
Master Service Subcontract Agreement.
¶ 3 Under the terms of the service contract, claimant was no
longer Pella’s employee but was described as an independent
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contractor. Pella could hire claimant to perform service work for its
customers, but the written contract did not prohibit or prevent
claimant from performing work for individuals or entities other than
Pella. Claimant conceded that, if he so chose, he could advertise
his business and accept other work.
¶ 4 Claimant testified that his daily work remained largely
unchanged. However, he took several steps, many at Pella’s behest,
separating him from Pella’s employ, including but not limited to the
following:
• Claimant formed his own business and registered his
business name, CP Window Service (CP), with the
Colorado Secretary of State in March 2009.
• Claimant renewed the CP trade name with the Secretary
of State’s Office in 2010, 2011, 2012, and 2013.
• Claimant could work any day he wished. If he wanted to
take a day off, he simply so advised Pella one week in
advance.
• Pella issued payment checks to CP — not to claimant —
for work performed by the job, rather than by the hour,
regardless of how long it took to complete the work.
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• Pella did not withhold taxes from the checks it wrote to
CP; claimant was responsible for paying any taxes he or
CP incurred.
• Claimant obtained and paid for his own liability
insurance.
• Claimant also lost his health insurance when Pella “made
the switch over.”
• Claimant’s business operations as CP were never
combined in any way with Pella’s business operations.
¶ 5 Claimant was likewise required to obtain his own workers’
compensation insurance, but when he established CP in March
2009, he filed a form with the Department of Labor expressly
rejecting such insurance. Four months later, he filed a second
rejection of workers’ compensation coverage.
¶ 6 By contrast, other factors evidenced claimant’s dependence on
Pella’s business:
• CP Window Service had no employees other than
claimant.
• Customers paid Pella for the service work, not CP.
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• Although the written contract permitted him to work for
others, in practice claimant never worked for any
individual or entity other than Pella “from 2009 until
2012.”
• Claimant testified that Pella work kept him busy full
time, leaving him no time or opportunity to accept other
work.
• He had no customers other than Pella.
• Claimant did not advertise CP.
• Claimant had no business cards for CP. He testified that
Pella provided him with “blank” cards bearing Pella’s
phone and fax numbers, on which he could handwrite in
his or CP’s name.
¶ 7 On December 11, 2013, claimant was repairing a window
pursuant to a Pella assignment when he fell from a second-floor
window. The fall resulted in a compression fracture of claimant’s
spine at L1. Claimant now suffers from paraplegia. He told the
hospital during his initial stay that he was “self employed and a
contract employee for [the] job he was on, so there is NO worker[s’]
comp[ensation] possibility.” He also indicated on other related
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medical forms, in conversations with doctors, and on a social
security disability benefits application that he was self-employed
and had been working as an independent contractor. Nonetheless,
several months after sustaining his injury, claimant filed a claim for
workers’ compensation coverage, which Pella and its insurer,
Pinnacol Assurance, contested on the ground that claimant was an
independent contractor at the time of his injury.
II. Procedural History
¶ 8 The parties litigated the issue. The resulting case has had a
lengthy procedural history. It went to a hearing in September 2014
conducted by ALJ Michelle Jones. In analyzing the evidence
presented, ALJ Jones applied the independent contractor tests set
forth in the Workers’ Compensation Act (WCA), section
8-40-202(2)(b), C.R.S. 2019. That statutory section enumerates
nine criteria which establish an independent contractor’s
independence from a prospective employer. It also mandates that,
if the worker and the putative employer enter into a written
contract, the document “shall create a rebuttable presumption of an
independent contractor relationship between the parties.”
§ 8-40-202(2)(b)(IV).
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¶ 9 ALJ Jones found that the nine factors all weighed in Pella’s
favor, tipping the scales toward a finding that claimant was an
independent contractor rather than an employee. For example, she
explained that, although claimant had no employees and performed
work for no one other than Pella, the “issue is whether or not
claimant was required to work exclusively for the employer.” She
concluded claimant was not required to work exclusively for Pella.
She noted that there was conflicting testimony about whether
claimant’s work was inspected by Pella, but concluded that the
evidence did not establish that Pella oversaw claimant’s work or
instructed claimant on how to perform the work. Likewise,
although ALJ Jones credited claimant’s testimony that “he was
provided with materials and equipment necessary for his repair
work . . . includ[ing] . . . scaffolding, ladders, suction cups, and
glass cutters,” she found that “the evidence establishes that the
actual tools used were” claimant’s. She also found that Pella
provided claimant with no more than “minimal training” and no
longer provided him with tools to perform the service work,
although he did obtain some materials from Pella to perform the
work. She determined that the written contract between the parties
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created a rebuttable presumption that claimant was an
independent contractor, which he failed to overcome. Based on her
analysis of all nine factors, she concluded claimant was an
independent contractor.
¶ 10 But, in May 2015, the Panel set aside ALJ’s Jones’ order,
concluding that she had failed to follow the test adopted by the
supreme court in Softrock. Although the WCA specifies that the
determination “whether an individual is an employee” or an
independent contractor for workers’ compensation purposes “shall
be based on the nine criteria found in section 8-40-202(2)(b)(II),” the
Panel concluded that Softrock applied because the nine factors in
the WCA are identical to the nine factors listed in the Colorado
another unemployment compensation case, which Softrock had
approvingly cited. Softrock suggested that the Long View factors
should be considered as follows:
when evaluating a claim that the putative employee maintained an independent trade or business, the Division and the ICAO could consider whether the putative employee: maintained an independent business card, listing, address, or telephone; had a financial investment such that there was a risk of suffering a loss on the project; used his or her own equipment on the project; set the price for performing the project; employed others to complete the project; and carried liability insurance.
Softrock, ¶ 16. Based on this language, the Panel ruled that the
“paucity of evidence in the record pertinent to many of the factors
mentioned by the Softrock decision” required it to set aside ALJ
Jones’ order and “remand the matter for additional evidentiary
proceedings.”
¶ 12 On remand a few months later, ALJ Jones conducted a second
hearing and admitted additional evidence. She again weighed the
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nine criteria set out in section 8-40-202(2)(b)(II), but also
considered the Long View/Softrock factors. ALJ Jones noted that
claimant had a business name, used tools he purchased, lost his
benefits, obtained his own liability insurance, and was free to
accept or reject Pella’s projects.
¶ 13 She expressly found that claimant had failed to show “that he
was not free from control and direction in the performance of his
services” and failed to show that “he was not customarily engaged
in an independent trade or business.” To support these findings,
she found that Pella was not aware that claimant was working
exclusively for it. She also found again that Pella no longer
provided claimant with tools, although she found that it did provide
him with materials necessary for jobs he accepted. But she pointed
out that the sixth factor of the nine factor test addresses provision
of tools and benefits, not the provision of materials.
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¶ 14 She therefore concluded that “the nature of the working
relationship in this case shows that it was an independent
contractor/employer relationship.”1
¶ 15 In an order issued April 26, 2016, the Panel rejected ALJ
Jones’ reasoning a second time. The Panel reiterated its
determination that Softrock applies to workers’ compensation cases,
noting that
[t]he intent of the sponsors [of the legislation]was to have both [section] 8-70-115 and[section] 8-40-202(2)(b)(II) construed in asimilar fashion, but only to the extent a courtwas applying the nine factors. The Softrockdecision in 2014 was interpreting the ninefactors included in [section] 8-70-115, whichalso appear in [section] 8-40-202(2)(b)(II).Applying that decision to the application ofeither statute cannot be seen as contrary tothe intent of the General Assembly.
The Panel then went on to conclude that ALJ Jones’ conclusions of
law were “unsupported by substantial evidence in the record.” The
Panel chastised ALJ Jones for “[p]ermitting the label rather than the
actual nature of the relationship to control” and criticized her
1 The ALJ did not address whether claimant “had a financial investment such that there was a risk of suffering a loss on the project,” but neither did the Panel in its review.
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reliance on “the documents executed by the parties in March,
2009[,]” as indicative of claimant’s “independent business . . .
[despite] the absence of evidence in the record that claimant ever
took any steps to “create an independent business. The Panel
reasoned that Pella’s motivation for entering into a contractual
relationship with claimant and the other service technicians “was to
save money on payroll expenses.” It further observed that, under
the parties’ agreement, “claimant simply performed the same job he
had prior to 2009, but was paid in a different manner.” It deemed
claimant’s injury compensable. Because the parties had stipulated
to claimant’s average weekly wage, claimant’s award was calculable.
¶ 16 Pella subsequently appealed the Panel’s decision to this court.
However, because the Panel’s order had not reduced claimant’s
award to a sum certain, the appeal was dismissed without
prejudice. Pella Windows & Doors, Inc. v. Indus. Claim Appeals
Office, (Colo. App. No. 16CA0845, Mar. 2, 2017) (not selected for
publication pursuant to C.A.R. 35(e)).
¶ 17 In the second remand, ALJ Kara Cayce entered a brief order
dated February 2, 2018, approving the parties’ stipulation;
awarding claimant $800 per week in temporary total disability (TTD)
33
12
benefits from December 12, 2013, through May 31, 2014; deducting
$186.23 from the TTD award after June 1, 2014, as an offset
against the social security disability benefit claimant began
receiving that month; and ordering Pella to pay claimant TTD
benefits of $613.77 per week thereafter and continuing. However,
ALJ Cayce crossed out language on the order notifying the parties
of their right to seek review.
¶ 18 Nevertheless, Pella sought the Panel’s review of this order. The
Panel issued its final order on September 24, 2018. Because ALJ
Cayce had stricken language in the order advising the parties of
their appeal rights, one member of the Panel characterized the order
as a summary order necessitating a request for full findings within
ten days of the order before further appellate review could be taken.
See § 8-43-215, C.R.S. 2019.2 Pella had not sought review within
the statutory ten-day period. Consequently, one of the two Panel
members reviewing the matter concluded that ALJ Cayce’s order
2 Section 8-43-215, C.R.S. 2019, mandates that any party seeking review of a summary order must “make a written request for a full order within ten working days after the date of mailing of the summary order. The request is a prerequisite to review under section 8-43-301[, C.R.S. 2019].”
34
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was final and unappealable. The other Panel member disagreed
with that characterization and conclusion. But, because she
concurred with the rest of the decision and with the conclusion that
ALJ Cayce’s order should be affirmed, the Panel member’s
disagreement did not change the outcome of the decision. Instead,
the Panel again reiterated its belief that Softrock applied and that
the evidence supported a finding that claimant was an employee
whose on-the-job injury was compensable.
¶ 19 All three of the Panel’s decisions are now before us for review.
Pella asks us to consider whether the Panel erred by concluding
that Softrock applies to workers’ compensation actions. It also
challenges the Panel’s characterization of ALJ Cayce’s order as a
summary order. And, finally, Pella argues that the Panel
overstepped its authority by rejecting ALJ Jones’ finding that
claimant was an independent contractor.
III. Finality of ALJ Cayce’s Order
¶ 20 We first address the Panel’s determination that ALJ Cayce’s
order reducing claimant’s award to a sum certain was a summary
order. In that order, issued after Pella’s first appeal to this court
was dismissed without prejudice, ALJ Cayce stated that she was
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14
“reversing this ALJ’s prior order of November 30, 2015, . . .
pursuant to the stipulation of the parties and in order to create a
final and appealable order” and awarded claimant specific TTD
benefits. Nowhere was the order identified as a summary order.
Nothing in the order stated that Pella’s time to seek review was
limited to ten days. Pella, therefore, had no reason to believe it had
to act within ten days to preserve its appellate rights.
¶ 21 But parties are entitled to “notice of a critical determination in
a proceeding.” Patterson v. Indus. Comm’n, 39 Colo. App. 255, 257,
567 P.2d 385, 387 (1977). Notice that an order is characterized as
a summary order requiring a request for full findings within ten
days is a “critical determination” pertinent to the order. “[W]here
the parties, whether employee or employer, are represented in the
administrative proceeding under consideration by attorneys of
record, notice of decisions affecting the substantial rights of the
parties must be given to their attorneys.” Mountain States Tel. &
Tel. Co. v. Dep’t of Labor & Emp’t, 184 Colo. 334, 338, 520 P.2d 586,
588 (1974).
¶ 22 Here, the failure to advise Pella and its counsel that the order
may be considered a summary order subjecting Pella to a ten-day
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15
window within which to request full findings violated Pella’s right to
due process under the law. See Hall v. Home Furniture Co., 724
P.2d 94, 96 (Colo. App. 1986) (“Due process is violated when an
attorney of record, through no fault of his own, is denied notice of a
critical determination in his client’s case and by reason thereof fails
to take the procedural steps necessary to preserve his client’s
rights.”).
¶ 23 Accordingly, the determination of Panel member Kroll
characterizing ALJ Cayce’s order as a final, unappealable summary
order improperly deprived Pella of its guaranteed rights to due
process. We therefore set aside that portion of the Panel’s
September 24, 2018, decision and proceed with our review of the
merits of ALJ Cayce’s decision as well as ALJ Jones’ two decisions
and the Panel’s three decisions in this case.
IV. Applicability of Softrock to Workers’ Compensation Actions
¶ 24 Pella contends that the Panel erred by applying the supreme
court’s Softrock decision to this workers’ compensation action. It
argues that Softrock was limited to unemployment cases and that
applying it in the workers’ compensation context violates the
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16
General Assembly’s express intent. We are not persuaded that the
Panel erred.
¶ 25 Prior to Softrock’s announcement, independent contractor
determinations in unemployment cases often turned on a single
question: whether the worker performed services exclusively or
predominantly for one employer. If that question was answered in
the affirmative, the worker was generally found to be an employee
rather than an independent contractor. See, e.g., Carpet Exch. of
Denver, Inc. v. Indus. Claim Appeals Office, 859 P.2d 278, 282 (Colo.
App. 1993) (holding that because most of the employer’s workers
“were . . . not customarily engaged in the business independent of
their relationship with the company . . . they were not engaged in
an independent business and were, therefore, in covered
employment”), abrogated by Softrock, ¶ 18.
¶ 26 Softrock rejected the use of the dispositive factor test
exemplified by Carpet Exchange. Instead, the supreme court held
that nine factors enumerated in section 8-70-115 of CESA — which
are identical to the nine criteria set out in section 8-40-202(2)(b)(II)
of the WCA — are “indicative of what the General Assembly thought
are important distinctions between employees and independent
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17
contractors. As such, we conclude that they should be considered
when determining whether an individual is engaged in an
independent business for the purposes of unemployment insurance
tax liability.” Softrock, ¶ 15. The nine factors listed in the WCA,
and repeated in the CESA, are as follows:
(II) To prove independence it must be shownthat the person for whom services areperformed does not:
(A) Require the individual to work exclusivelyfor the person for whom services areperformed; except that the individual maychoose to work exclusively for such person fora finite period of time specified in thedocument;
(B) Establish a quality standard for theindividual; except that the person may provideplans and specifications regarding the workbut cannot oversee the actual work or instructthe individual as to how the work will beperformed;
(C) Pay a salary or at an hourly rate instead ofat a fixed or contract rate;
(D) Terminate the work of the service providerduring the contract period unless such serviceprovider violates the terms of the contract orfails to produce a result that meets thespecifications of the contract;
(E) Provide more than minimal training for theindividual;
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(F) Provide tools or benefits to the individual;except that materials and equipment may besupplied;
(G) Dictate the time of performance; exceptthat a completion schedule and a range ofnegotiated and mutually agreeable work hoursmay be established;
(H) Pay the service provider personally insteadof making checks payable to the trade orbusiness name of such service provider; and
(I) Combine the business operations of theperson for whom service is provided in any waywith the business operations of the serviceprovider instead of maintaining all suchoperations separately and distinctly.
§ 8-40-202(2)(b)(II).
¶ 27 But the supreme court held that the independent contractor
analysis need not be limited to these nine statutory criteria. Citing
the other factors considered in Long View — such as the worker’s
use of business cards, financial risk, setting the price for jobs,
employing others, and carrying liability insurance, Softrock, ¶ 16 —
the supreme court stated that,
[g]iven the wide array of factors that could berelevant, we conclude that rather thanrequiring a rigid check-box type inspection, amore accurate test to determine if anindividual is customarily engaged in anindependent business involves an inquiry intothe nature of the working relationship. The
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[Panel] and the Division may consider the nine factors in section 8-70-115(1)(c) as well as any other information relevant to the nature of the work and the relationship between the employer and the individual. Accordingly, we decline to adopt the court of appeals’ test that exclusively considers only the nine factors enumerated in section 8-70-115(1)(c).
Id. at ¶ 17. Softrock thus expanded the scope of independent
contractor review in the unemployment arena.
¶ 28 As Pella points out, Softrock stated that the issue before it was
“whether an individual is an independent contractor as opposed to
an employee for unemployment tax liability purposes.” Id. at ¶ 1.
Nowhere does Softrock mention or discuss its applicability to
workers’ compensation cases.
¶ 29 Indeed, Softrock’s underlying premise — that an independent
contractor analysis cannot be based on a single, dispositive factor
— is not of concern in the workers’ compensation context. Unlike
the CESA, the WCA expressly prohibits such a singular analysis:
“The fact that an individual performs services exclusively or
primarily for another shall not be conclusive evidence that the
individual is an employee.” § 8-40-102(2), C.R.S. 2019.
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20
Consequently, the Panel analysis that was challenged in Softrock is
not at issue in the worker’s compensation arena.
¶ 30 Pella also correctly notes several dissimilarities between the
CESA and the WCA which suggest that the legislature intended
independent contractor analysis to be limited to the WCA’s nine
criteria.
¶ 31 First, the CESA applies the nine criteria to “a written
document, signed by both parties.” § 8-70-115(1)(c). In contrast,
the WCA applies the factors to an analysis of the relationship
between the parties. However, this distinction is essentially
rendered moot by Softrock, which held them “indicative of . . .
important distinctions between employees and independent
contractors.” Softrock, ¶ 15. Thus, after Softrock, the nine criteria
are no longer limited to written documents; they can be applied to
the relationship between the parties, just as they are in the WCA.
See id.
¶ 32 Second, in 1993, the legislature expressly added language to
the WCA permitting consideration of independent contractor cases
that arose in the unemployment context. The statute was amended
to provide as follows:
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The general assembly hereby finds that the determination of whether an individual is an employee for purposes of the “Workers’ Compensation Act of Colorado” is subject to a great deal of speculation and litigation. It is the intent of the general assembly to provide an easily ascertainable standard for determining whether an individual is an employee. In order to further this objective, the test for determining whether an individual is an employee for the purposes of the “Workers’ Compensation Act of Colorado” is based on the criteria found in section 8-70-115. It is the intent of the General Assembly that when determining whether an individual is an employee only the factors specified in section 8-40-202(2) [the nine criteria set forth above] and any case law which has construed the provisions of section 8-70-115 are to be considered.
(emphasis added). However, the italicized language was removed by
legislative amendment just two years later. The amended legislative
declaration read as follows, and still so reads today:
The general assembly hereby finds that the determination of whether an individual is an employee for purposes of the “Workers’ Compensation Act of Colorado” is subject to a great deal of speculation and litigation. It is the intent of the general assembly to provide an easily ascertainable standard for determining whether an individual is an employee. In order to further this objective, the test for determining whether an individual
43
22
is an employee for the purposes of the “Workers’ Compensation Act of Colorado” shall be based on the nine criteria found in section 8-40-202(2)(b)(II) which shall supersede the common law. The fact that an individual performs services exclusively or primarily for another shall not be conclusive evidence that the individual is an employee.
Ch. 112, sec. 1, § 8-40-102(2), 1995 Colo. Sess. Laws 343. The
removal of the language can be interpreted as a signal from the
General Assembly that hearing examiners and litigators should not
look to the CESA for guidance when assessing whether a worker is
an employee or an independent contractor for workers’
compensation purposes.
¶ 33 Last, the legislative declaration expressly states that, in
workers’ compensation cases, the test for independent contractors
“shall be based on the nine criteria found in section
8-40-202(2)(b)(II).” Id. This, too, could be interpreted as the
legislature’s attempt to limit the analysis to the nine factors. And,
certainly, Pella so argues.
¶ 34 But we are not persuaded this legislative declaration or the
differences between the CESA and WCA necessitate limiting the
scope of independent contractor analysis. As the Panel suggests,
44
23
“based on” as used in section 8-40-102(2) does not necessarily
mean “exclusively.” On the contrary, the dictionary definition of
“based on” is “to find a foundation or basis for” and refers to “the
fundamental part of something.” Merriam-Webster Dictionary,
https://perma.cc/YXY6-8YZT.
¶ 35 Other courts have followed the dictionary’s expansive
denotation of the term “based on.” See McDaniel v. Chevron Corp.,
203 F.3d 1099, 1111 (9th Cir. 2000) (in reviewing the applicability
of mortality tables, the Ninth Circuit adopted an interpretation of
“based on” as referring “to a ‘starting point’ or a ‘foundation’” in
holding that mortality tables could be used as a “starting point” for
calculating mortality assumptions); Mount Vernon Fire Ins. Co. v.
policy that excluded claims “based on assault or on battery” was
held to exclude negligence claims arising out of an assault as well
as intentional torts); see also Freeman v. United States, 564 U.S.
522, 535 (2011) (Sotomayor, J., concurring) (“To ask whether a
particular term of imprisonment is ‘based on’ a Guidelines
sentencing range is to ask whether that range serves as the basis or
foundation for the term of imprisonment.”).
45
24
¶ 36 Thus, by using the term “based on,” the legislature signaled
that the nine factors would provide a fundamental baseline upon
which to premise the independent contractor analysis. If the
legislature had intended litigants to be limited exclusively to the
nine statutory criteria, it could have so stated by omitting the term
“based on” and instead stating simply that fact finders must
analyze these nine factors when weighing whether a worker is an
independent contractor. See, e.g., Young v. Brighton Sch. Dist. 27J,
2014 CO 32, ¶ 20 (“Had the legislature intended the waivers to be
mutually exclusive, it would have affirmatively expressed this intent
in the plain language of the statute.”); Montez v. People, 2012 CO 6,
¶ 20 (“Had the legislature intended that firearms be deadly weapons
per se — or, equivalently, that for a firearm to be a deadly weapon
its manufacturer must intend it to be used in a manner capable of
producing death or serious bodily injury, and that all firearm
manufacturers do so intend — the legislature could have expressed
that intent in any number of ways.”). Because the legislature chose
to use the broader term “based on,” we conclude that the legislature
left room for consideration of other factors beyond the nine
enumerated criteria.
46
25
¶ 37 Moreover, although our goal in statutory analysis is to give
effect to the legislature’s intent, see Davison v. Indus. Claim Appeals
Office, 84 P.3d 1023, 1029 (Colo. 2004), we are also bound to follow
the supreme court where it has determined the legislature’s intent.
See In re Estate of Ramstetter, 2016 COA 81, ¶ 40 (“[T]he court of
appeals is ‘bound to follow supreme court precedent.’” (quoting
People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010))).
¶ 38 In Softrock, ¶ 17, the supreme court held that fact finders
assessing the independence of a worker were not limited to the nine
statutory criteria but could weigh additional factors. Given that the
nine factors are identical in both the CESA and the WCA, and that
the factors in both circumstances are used to consider how
enmeshed the worker is with the putative employer, we must apply
Softrock to this case.
¶ 39 We therefore conclude that the Panel did not err when it
determined that ALJ Jones should have considered the Softrock
factors in weighing whether claimant’s business was independent of
Pella. And, where the Panel’s interpretation is reasonable and is
not inconsistent with the legislative intent, we generally defer to it.
See Sanco Indus. v. Stefanski, 147 P.3d 5, 8 (Colo. 2006); Support,
47
26
Inc. v. Indus. Claim Appeals Office, 968 P.2d 174, 175 (Colo. App.
1998).
V. The Panel Exceeded Its Authority
¶ 40 Having determined that the Panel correctly remanded the
matter to ALJ Jones for consideration of the Softrock factors, we
turn to the Panel’s 2016 post-remand order. As noted above, in
that order, the Panel reiterated its conclusion that Softrock applies
in the workers’ compensation context. The Panel then went on,
though, to hold that “the ALJ’s conclusions of law [are]
unsupported by substantial evidence in the record.” The Panel
criticized ALJ Jones for reasoning
that because claimant was allowed by the documents executed by the parties in March, 2009, to operate an independent business, he therefore was engaged in an independent business. This finding is belied by the absence of evidence in the record that the claimant ever took any steps to do so.
¶ 41 The Panel continued its discussion by analyzing and
categorizing the evidence. Among its observations, the Panel noted
the following:
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• Claimant expressed no interest in being an independent
contractor or getting laid off; he just wanted to keep
working.
• Claimant did not shop for his van. “He received the van
from the respondent.”
• He did not finance the van, but instead paid Pella for it.
• He did not have a business card.
• Pella dictated the price of each job.
• Claimant only set up his business and registered his
business name after Pella laid him off.
• Claimant used his personal cell phone for business
purposes.
• Pella scheduled customers’ jobs.
¶ 42 While all these facts may be true, the Panel’s analysis ignored
other facts found by ALJ Jones. For example, ALJ Jones found that
• Claimant obtained his own liability insurance.
• He knew he could work for others if time permitted.
• He received only minimal training from Pella.
• He could rearrange his schedule.
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• He was paid through CP and issued invoices to Pella
through CP.
• He paid for his own phone.
• He received no benefits from Pella.
• Pella encouraged service technicians to seek other work
and did not know that claimant worked exclusively for it.
• Claimant himself told hospital staff, doctors, and the
social security administration that he was an
independent contractor, suggesting that he did not
believe he was Pella’s employee at the time of his injury.
The Panel did not address any of these findings.
¶ 43 Likewise, the Panel disregarded ALJ Jones’ credibility
determinations. Notably, ALJ Jones referred to claimant’s
testimony that, after signing the service contract with Pella, he was
unable “to reject some jobs and accept others.” But, she noted,
Brian McHugh, an employee of Pella, directly contradicted
claimant’s assertion. ALJ Jones expressly found Mr. McHugh’s
testimony credible and persuasive. Conversely, she described “the
testimony of [c]laimant, overall, is not found as credible or
persuasive.”
50
29
¶ 44 When reviewing an ALJ’s decision, the Panel must adhere to
the authority granted it by statute. The Panel may only “correct, set
aside, or remand” an ALJ’s order on the grounds that
the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the director or administrative law judge are supported by substantial evidence, they shall not be altered by the [P]anel.
§ 8-43-301(8), C.R.S. 2019. Whether a worker is an independent
contractor “is a factual determination for resolution by the ALJ.”
Nelson v. Indus. Claim Appeals Office, 981 P.2d 210, 213 (Colo. App.
1998). Therefore, like us, the Panel “must uphold the ALJ’s
findings of fact if such are supported by substantial evidence in the
record.” Id. Likewise, the Panel “must defer to the ALJ’s resolution
of conflicts in the evidence, credibility determinations, and the
plausible inferences that [s]he drew from the evidence.” Id. And the
ALJ’s credibility determinations cannot be set aside unless the
evidence is “overwhelmingly rebutted by hard, certain evidence” to
the contrary. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558,
561 (Colo. App. 2000); see also Youngs v. Indus. Claim Appeals
51
30
Office, 2012 COA 85M, ¶ 46 (“Nor may we set aside a ruling
dependent on witness credibility where the testimony has not been
rebutted by other evidence.”).
¶ 45 The Panel disregarded ALJ Jones’ factual findings and
credibility determinations to enter findings of its own. ALJ Jones
followed the Panel’s remand order, conducted a second hearing, and
considered the evidence in light of both the nine statutory criteria
and the Softrock factors. Indeed, ALJ Jones’ November 2015
post-remand order is twenty-one pages long, contains fifty
numbered paragraphs of fact findings, and ten pages of conclusions
of law. It appears to us to be a thorough analysis of all the
applicable factors.
¶ 46 Accordingly, we conclude that the Panel exceeded its authority
by reweighing the evidence presented before ALJ Jones. Even
though the Panel may not have agreed with ALJ Jones’ decision,
substantial evidence supported her factual findings and credibility
determinations. The Panel was therefore bound by them and
should not have set aside the November 2015 order. See
§ 8-43-301(8); Nelson, 981 P.2d at 213. Having determined that the
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31
Panel exceeded its authority when it set aside ALJ Jones’ November
2015 order, we need not reach the merits of ALJ Cayce’s order.
VI. Conclusion
¶ 47 The Panel’s final orders of April 26, 2016, and September 24,
2018, are set aside, and the case is remanded with directions to
reinstate ALJ Jones’ order of November 25, 2015.
JUDGE DAILEY and JUDGE BROWN concur.
53
INDUSTRIAL CLAIM APPEALS OFFICE
W.C. No. 5-066-313-002
IN THE MATTER OF THE CLAIM OF:
FABIAN ESPINOZA,
Claimant,
v. FINAL ORDER
BAKER CONCRETE CONSTRUCTION,
Employer, and
ARCH INSURANCE COMPANY,
Insurer, Respondents.
The claimant seeks review of an order of Administrative Law Judge Cayce (ALJ) issued August 5, 2019, that ordered respondents to pay penalties to the claimant. We affirm.
Claimant sustained an admitted injury to his left hip on May 1, 2017. He continued to work on modified duty with temporary restrictions until April 20, 2018. After an earlier September 11, 2018, hearing wherein ALJ Cannici presided, Judge Cannici determined claimant’s average weekly wage (AWW) to be $1,314.12. Judge Cannici awarded temporary partial disability (TPD) benefits for the period of May 5, 2017 through April 10, 2018. Finding of Fact 22 in ALJ Cannici’s order gave rise to some confusion as to the calculation of the TPD benefits. Judge Cannici’s finding stated:
The record reveals that claimant was limited to working 40 hours per [week] while on modified duty employment. In contrast, claimant testified that he consistently worked in excess of 40 hours each week for employer prior to his injury. The wage records also reveal that claimant regularly worked in excess of 40 hours per week after May 1, 2017... Accordingly, claimant is entitled to receive TPD benefits to the extent that his AWW of $1,314.12 exceeded his weekly earnings during the period May 5, 2017 through April 10, 2018. (Emphasis added.)
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FABIAN ESPINOZA W. C. No. 5-066-313-002Page 2
ALJ Cannici did not include the specific dollar amount of TPD benefits to be paid.
On November 19, 2018, respondents issued a check to the claimant for $8,252.38 for TPD benefits for the benefit period.
On December 5, 2018, claimant’s counsel emailed respondents’ counsel alleging claimant was owed additional TPD benefits. The email indicated claimant was owed “full value” for the benefit period (i.e. – 100% of the difference between the claimant’s AWW and claimant’s wage loss during the benefit period), or $5,980.70. In other words, claimant contended the appropriate calculation for TPD was (pre-injury AWW minus post-injury wages) rather than the formula set out in § 8-42-106 of (pre-injury AWW minus post injury wages times 2/3).
On December 17, 2018, respondents’ counsel emailed a response maintaining claimant had been properly paid per ALJ Cannici’s order and requested claimant to explain his belief that respondents owed full value replacement of his wage loss. The same day, claimant’s counsel responded, stating respondents were required to pay TTD (sic) benefits according to the newly determined AWW per the ALJ’s order.
On December 18, 2018, claimant’s counsel again contacted respondents’ counsel and indicated there was a slight variance in TPD benefit calculations, and requested respondents to provide the basis for their TPD calculations. On January 10, 2019, respondents’ counsel stated he had followed up with the adjuster regarding the issue. Respondents forwarded an indemnity log to the claimant on January 17, 2019. No other explanation regarding respondents’ TPD calculations were provided.
On January 31, 2019, claimant’s counsel again contacted respondents’ counsel alleging claimant was entitled to additional TPD benefits. Counsel again raised a literal reading of ALJ Cannici’s order (as set forth above). In addition, counsel raised an alternative calculation. The difference between the gross AWW and gross wages during the benefit period was $16,027.75. Even if the 2/3 multiplier was applied to this amount, the TPD benefits would be $10,685.17. Respondents’ TPD payment was $8,252.38 which left an underpayment of $2,432.79. Again, counsel requested that respondents provide their rationale for their TPD calculations or the issue would need to be resolved at a hearing or settlement conference.
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FABIAN ESPINOZA W. C. No. 5-066-313-002Page 3
Claimant filed an application for hearing on February 20, 2019 on the issues of TPD and penalties for knowingly refusing to obey a lawful order in violation of § 8-43-304(1), C.R.S. The hearing was held on June 4, 2019, with ALJ Cayce presiding.
At hearing, claimant testified that the underpayment of TPD caused him and his family financial hardship, as his daughter dropped out of college because he was no longer able to provide her with financial assistance and he was no longer able to go on family vacations.
The adjuster that oversaw the claim at the time of the TPD payment, Mr. Davis, was no longer employed by the company by the date of the hearing. The successor adjuster, Ms. Tiemann, testified that she was unable to determine the basis for the calculation made and did not attempt to perform her own calculations in preparation for the hearing. She could not recall when she was first alerted to the TPD underpayment issue, nor could she recall if she was alerted prior to her notation on April 16, 2019, which is the first mention of the TPD shortage within respondents’ claim notes.
The claimant and the respondents had slightly different mathematical computations regarding the AWW and actual wages during the benefit period. Claimant calculates gross AWW as $64,016.41 and actual wages as $48,936.53, a difference of $15,079.88. Applying a 2/3 multiplier to the difference leaves a TPD total of $10,053.25. Respondents already paid $8,252.38 leaving an underpayment of TPD of $1,800.87. Respondents calculate gross AWW as $64,917.53 and wages as $49,881.30, a difference of $15,406.76. Applying a 2/3 multiplier leaves a TPD total of $10,271.17. After subtracting the TPD already paid leaves an underpayment of $2,018.79. The ALJ found the claimant’s calculations to be correct.
ALJ Cayce reviewed the order of ALJ Cannici and noted that Judge Cannici did not award claimant the full value of the difference between claimant’s AWW and weekly earnings during the benefit period. Rather, she interpreted Judge Cannici’s order to simply state that the claimant suffered lost wages and is entitled to TPD benefits. ALJ Cannici did not order the TPD benefits to be calculated via any alternative method not specified in § 8-42-106(1), C.R.S. ALJ Cayce rejected claimant’s contention that the phrasing of Judge Cannici’s order provided an alternative method for calculating the TPD benefits.
The ALJ concluded that a mere miscalculation in these specific circumstances does not, by itself, warrant imposition of penalties. However, respondents’ inaction and failure to remedy the admitted discrepancy is objectively unreasonable in light of
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FABIAN ESPINOZA W. C. No. 5-066-313-002Page 4
counsel’s repeated attempts to reconcile the underpayment. Respondents made no attempts to provide the basis for their initial calculations, nor any other action even in light of an application for hearing endorsing the issue of penalties. The ALJ deemed problematic, respondents’ failure to check their calculations when repeatedly apprised of a potential discrepancy and failure to promptly remedy what they acknowledged as an underpayment. The ALJ stated that this is not a situation where each party maintains their respective calculations were correct, or the sole dispute was whether the claimant was entitled to “full value” per his interpretation of Judge Cannici’s order.
ALJ Cayce found that pursuant to ALJ Cannici’s order, claimant was owed $10,053.26 in total. He was paid $8,252.38, thus leaving an underpayment of TPD of $1,800.88. Respondents failed to comply with ALJ Cannici’s order by failing to pay the full amount of TPD benefits owed to the claimant. The ALJ found that the respondents’ actions were objectively unreasonable, as claimant repeatedly attempted to rectify the discrepancy, at hearing respondents conceded claimant had been underpaid, and as of the date of the hearing, respondents had not rectified their failure to pay the proper amount under the order.
The ALJ concluded that although respondents issued a timely TPD payment, they failed to comply with ALJ Cannici’s order by failing to pay the full amount of benefits owed to claimant for the time period awarded by Judge Cannici. The ALJ agreed that a mere miscalculation in these specific circumstances did not, by itself, warrant imposition of penalties. However, respondents’ inaction and failure to remedy the admitted discrepancy (once brought to the attention of the respondents) was objectively unreasonable. The ALJ held that a reasonable insurer, under the circumstances, would have made prompt efforts to ensure there were no miscalculations on their behalf. The ALJ found no evidence that respondents did so. The ALJ noted that respondents did not provide any explanation as to the basis of their initial, incorrect calculations, or why there was a difference in those calculations from the calculations submitted at hearing.
As a result, the ALJ concluded that respondents were subject to a penalty for the time period of February 1, 2019, through June 4, 2019 (the date of the hearing), a period of 124 days. The ALJ assessed a daily penalty of $5.00. In addition, the ALJ ordered payment of TPD benefits of $1,800.88 to the claimant. Lastly, the ALJ ordered respondents to pay interest at the rate of 8% per annum on all amounts of compensation not paid when due.
The claimant appeals the ALJ’s order to the Panel. He raises a single issue on appeal: whether the ALJ “abused her discretion in ordering respondents to pay a nominal
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FABIAN ESPINOZA W. C. No. 5-066-313-002 Page 5 amount of $5 per day, which is grossly disproportionate to the reprehensible conduct of the respondents, and does not adequately address the harm caused to the claimant.”
We note that a transcript of the hearing of June 4, 2019, was not requested or made
part of the record on appeal. Section 8-43-213(2), C.R.S. (party must order a transcript and it must be filed with the office of administrative courts within 25 days of the order). Therefore, the effectiveness of our review is severely limited, and we must presume that the ALJ’s factual findings are supported by the record. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Even without a transcript, though, the evidence that is included in the record before us substantially supports the ALJ’s decision.
In his brief, claimant describes a history of what he purports are incidents of slow
or shoddy claims adjusting throughout this claim. Claimant specifically charges respondents with unjustifiably delaying approval for surgery for 231 days; terminating the claimant’s employment and then not timely filing an admission of liability, thus leaving claimant without temporary disability benefits for six weeks; when eventually acknowledging claimant’s lost wages, respondents declared an AWW that was nearly $420 less than the actual AWW (the AWW dispute took over three months to resolve).
At the September 11, 2018, hearing, claimant made these same assertions and
asked ALJ Cannici to impose penalties for this conduct. Claimant provided evidence regarding the claims adjusting and its deleterious financial impact on the claimant. ALJ Cannici ultimately ruled that the claims adjusting was reasonable at the time and dismissed any penalties. This ruling was not appealed. Nonetheless, claimant asserts herein, “ALJ Cayce could easily have noted the pattern of behavior exemplified by the respondents in her analysis of these penalties.”
Claimant is essentially asking the Panel to weigh this extrinsic evidence, or at least
consider it to be an aggravating factor, as part of our analysis as to whether ALJ Cayce abused her discretion. While expounding on the prior claims adjusting incidents (which ALJ Cannici deemed were reasonable), claimant advances no theory or authority as to how this previous conduct fits within the penalty statute or is proper for our review.
What claimant describes is more akin with the tort action of bad faith claims
handling which falls outside the parameters of the Act. Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985).
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In their brief, Respondents implicitly confess the issue that § 8-43-304(1) applies to their conduct and that a penalty was properly imposed as a result of that conduct. Respondents’ only contention in opposition to the petition to review is that the ALJ did not abuse her discretion in determining the amount of the daily penalty.
The gravamen of Claimant’s argument is simply that the daily penalty imposed is
not equitable and thus an abuse of the ALJ’s discretion. We assume that the claimant testified as to the harmful impact of the respondents’ actions, because the ALJ referenced the same in her findings. Order at ¶ 14. That finding stated:
Claimant testified at hearing that, based on ALJ Cannici’s Order, he believes he is owed the full value of the difference between his gross AWW and his actual earnings during the period from May 5, 2017 through April 10, 2018. He testified that, upon receiving his TPD check, he immediately notified his attorney of a discrepancy. Claimant further testified the underpayment of TPD caused him and his family financial hardship, as his daughter dropped out of college because he was no longer able to provide her with financial assistance and he was no longer able to go on family vacations.
The ALJ’s finding leaves us unable to decipher whether the claimant’s purported harm was because he didn’t receive TPD at full wage replacement value or because he received less than what was owed. Further, although the ALJ pronounced what testimony was given by the claimant, the ALJ did not make a specific finding that the testimony was or was not credited, nor whether the harm purportedly suffered by the claimant was directly caused by the employer’s underpayment. We have no transcript to assist us in answering these uncertainties.
What is certain is that the claimant was deprived of the sum of $1800.88 from
November 19, 2018, through the date that respondents presumably paid the claimant. Respondents were also ordered to pay 8% per annum interest on the benefits not paid when due. The $620.00 penalty is slightly over 34% of the underpayment. The ALJ implicitly determined that such an amount was sufficient to address the conduct that was penalized.
We may not disturb the ALJ’s determination of the amount of the penalty to be
imposed in the absence of fraud of an abuse of discretion. See Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005). An abuse of discretion is not shown unless the order is beyond the bounds of reason as where it is contrary to law or not supported by substantial evidence in the record. Coates, Reid
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Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We also consider the standard announced in Colorado Dep't of Labor & Empl. v. Dami Hospitality, LLC, 2019 CO 47 (June 3, 2019). In that case, the Court adopted the “gross disproportionality” test to apply for determining whether a regulatory fine violates the Excessive Fines Clause. See United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998). According to the Court, in assessing proportionality, the ALJ should “consider whether the gravity of the offense is proportional to the severity of the penalty, considering whether the fine is harsher than fines for comparable offenses in this jurisdiction or than fines for the same offense in other jurisdictions.” Colorado Dep't of Labor & Empl. v. Dami Hospitality, LLC, supra p. 38.
We are not persuaded that the ALJ abused her discretion. The ALJ’s order shows that she considered the totality of the circumstances surrounding the penalty issue. We find nothing in the record to support a conclusion that the penalty imposed by the ALJ exceeds the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ’s order issued August 2, 2019 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
John A. Steninger
Brandee DeFalco-Galvin
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CERTIFICATE OF MAILING
Copies of this order were mailed to the parties at the addresses shown below on
1/31/2020 ______ by _____ TT ________ .
MAES LAW PC, Attn: LUCAS MAES ESQ, C/O: F LEE MAES ESQ, 3045 S BROADWAY, ENGLEWOOD, CO, 80113 (For Claimant) POLLART MILLER LC, Attn: R JAKE JOHNSON ESQ, 5700 S QUEBEC STREET SUITE 200, GREENWOOD, CO, 80111 (For Respondents)
NOTE: For clarification, the following entities have not been served with this Order. However, if you appeal a Final Order, you MUST include a copy of your appeal to the parties at the addresses listed above AND to the following parties:
COLORADO COURT OF APPEALS OFFICE OF THE ATTORNEY GENERAL 2 EAST 14TH AVENUE STATE SERVICES SECTION DENVER, CO 80203 RALPH L. CARR COLORADO JUDICIAL CENTER
1300 BROADWAY 6TH FLOOR DENVER, CO 80203
INDUSTRIAL CLAIM APPEALS OFFICE P.O. BOX 18291 DENVER, CO 80218-0291
61
INDUSTRIAL CLAIM APPEALS OFFICE
W.C. No. 5-072-903-002
IN THE MATTER OF THE CLAIM OF:
ANDREA RUDOLPH,
Claimant,
v. FINAL ORDER
LITTLETON PUBLIC SCHOOLS,
Self-Insured Employer, Respondent.
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated April 18, 2019, that found the claimant did not sustain a work related injury and denied and dismissed her claim for benefits. We affirm the decision of the ALJ.
The claimant worked as a middle school teacher at the employer’s Powell Middle School since 2014. The claimant had suffered for years with symptoms of persistent asthma and chronic sinusitis. In 2018, she was diagnosed with hypersensitivity pneumonitis (HP). HP is an immune inflammation of the lung in response to the inhalation of substances such as bacteria, fungus and other organic dust particles. The claimant experienced difficulty breathing, sleeping and with fatigue. She took a leave of absence from work between January 30 and April 17, 2017, and again between February 6 and May 29, 2018.
In April, 2017, the claimant underwent an X-ray that revealed scattered round glass density opacities in both lungs characteristic of pneumonitis. She began treating with pulmonologist Dr. Portnoy in December, 2017. Dr. Portnoy obtained a chest CT scan that indicated the claimant suffered from an interstitial lung disease rather than just with asthma. A lung biopsy in February, 2018, confirmed for Dr. Portnoy a diagnosis of HP and he determined the substance triggering the claimant’s symptoms was mold present in her school classroom. The claimant reported a work related occupational disease to the employer in March, 2018, and was referred to Dr. Hughes for treatment.
The claimant testified that her classroom at Powell Middle School often collected standing water during heavy rains or snowmelt. Air quality testing in August, 2017, described a water intrusion and visual observation of mold in the claimant’s classroom but no significant elevated airborne mold readings. A subsequent test on August 24,
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ANDREA RUDOLPH W. C. No. 5-072-903-002 Page 2 2017, confirmed that remediation efforts had maintained airborne mold spores to levels comparable to the out of doors. A March 19, 2018, air quality test revealed elevated mold levels in the classroom. Following remediation efforts, a repeat test on March 26 demonstrated mold levels reduced to those comparable to the out of doors. The employer’s facilities manager testified he did not receive any reports of flooding in the classroom and that prompt removal of any water by the janitor would prevent mold development.
The claimant testified she was assigned to a new school, Euclid Middle School, in
August, 2018. Once she was diagnosed with HP the claimant was provided with an immunosuppressant medication, CellCept, in March, 2018. Within six months, the claimant stated her symptoms had resolved. The claimant submitted the testimony of Dr. Portnoy and of Dr. Rose from National Jewish Health. That testimony supported the diagnosis of HP and its relationship to mold conditions at Powell Middle School.
The respondent presented the testimony of pulmonologist Dr. Schwartz, M.D. Dr.
Schwartz reviewed the history of the claimant’s treatment for asthma since 2012, examined the claimant and read the air quality and mold inspection reports from Powell Middle School. The doctor expressed the opinion the claimant did not have HP and that she was not rendered ill by mold conditions at her school. Dr. Schwartz noted the claimant had a history of asthma related problems prior to her work at Powell Middle School. He also pointed to a lack of acute respiratory symptoms she suffered while working in her classroom and the presence of recurrent symptoms while away from work. Dr. Schwartz also referenced medical studies authored by Dr. Talmadge King and Dr. Martina Vasakova that set forth several objectively displayed conditions necessary to a diagnosis of HP. Dr. Schwartz noted those criteria were absent in the plaintiff’s case.
The ALJ found the testimony of Dr. Schwartz persuasive. The doctor pointed out
the claimant’s symptoms were typical of her multiple previous respiratory exacerbations. The claimant began teaching at Powell Middle School for the 2014-15 school year. In March 2012 the claimant visited her personal physician at Kaiser Permanente clinic. Her diagnoses included persistent asthma with an acute exacerbation and chronic sinusitis. The doctor noted that claimant was “frustrated as has recurrent asthma exacerbations and chronic sinus congestions. Wonders if she needs admission for full testing or evaluation at National Jewish.” On March 12 2012, the claimant exchanged correspondence with Dr. Cvietusa at Kaiser and again requested the possibility of a referral to National Jewish Hospital for testing. She noted that her respiratory issues limited her activities and inquired about a leave of absence from work. On March 19, 2012, she visited allergist Richard Crockett, M.D. for an evaluation. Dr. Crockett noted that the claimant’s
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symptoms and respiratory infections started in 2009. He remarked that the claimant had reported frequent bronchitis and “chronic fatigue since 2009, getting worse.” Dr. Crockett reviewed a prior CT scan of the claimant’s sinuses from November 2009 that showed “extensive inflammatory changes.” She continued to suffer chronic sinusitis and asthma symptoms with periodic flare ups. By January 12, 2017, the claimant reported to Dr. Cvietusa that she had experienced a bad quality of life for years because of poorly controlled asthma. The medical records and claimant’s reports reflect that she had been suffering recurrent asthma symptoms that produced a steady decline in her quality of life and activities for years before and during her work at Powell Middle School. The ALJ noted that although the claimant’s symptoms should have improved while she was away from school and separated from any mold exposure in her classroom, medical records reflected that the claimant still suffered respiratory problems while away from school. The ALJ also found persuasive Dr. Schwartz’ reliance on articles specifying the diagnostic criteria for HP that allowed him to conclude the claimant did not, in fact, have HP. Therefore, circumstances that might include mold in the classroom could not have triggered symptoms that would have been characteristic of HP. The doctor persuaded the ALJ that conditions in the claimant’s work place did not cause or aggravate her condition.
On appeal the claimant contends the ALJ erred in denying her claim for medical and temporary total disability benefits when a preponderance of the evidence demonstrated she sustained a compensable work related injury.
While the ALJ determines the entitlement to benefits by reviewing the record to discern a result justified by a ‘preponderance’ of the evidence, our review of the ALJ’s determination as to whether there is a preponderance is limited to asking whether that determination is supported by ‘substantial’ evidence. Section 8-43-301(8) C.R.S.
Pursuant to §8-41-301(1) (c), C.R.S., a disability is compensable if it is shown that it was “proximately caused by an injury . . . arising out of and in the course of the employee’s employment.” To establish that an injury arose out of an employee’s employment, there must be a causal connection between the employment and injury such that the injury has its origins in the employee’s work-related functions and is sufficiently related to those functions to be considered part of the employment contract. Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999). In reaching a conclusion concerning causation, the ALJ may make reasonable inferences from the circumstantial evidence presented. See Electric Mutual Liability Insurance Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964). Furthermore, it is the prerogative of the ALJ to resolve conflicts in the evidence and determine the credibility of witnesses and
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ANDREA RUDOLPH W. C. No. 5-072-903-002 Page 4 the probative value of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993). So long as such determination is supported by substantial evidence in the record, it is binding on review. See May D & F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo. App. 1988). 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 or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985); Ackerman v. Hilton’s Mech. Men, 914 P.2d 524, 527-28 (Colo. App. 1996).
Under this standard, we must defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990). Further, we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997). Claimant's arguments notwithstanding, we perceive no extreme circumstances here.
The ALJ found the opinions of Dr. Schwartz compelling. The doctor described the claimant’s symptoms represented a logical and expected continuation of chronic respiratory and asthma illness that preexisted any exposures the claimant encountered at work. Dr. Schwartz explained the claimant suffered symptoms during extended periods of absence from her classroom. He found the air quality reports of mold exposure were insufficient to document the presence of airborne mold during much of the time the claimant worked at Powell Middle School. The doctor also relied on medical studies to indicate the objective diagnostic tests administered with the claimant did not satisfy the criteria for a diagnosis of HP. Since the claimant’s evidence relied on that diagnosis to explain her work related occupational disease, expert opinion questioning the presence of an HP condition was of particular significance. Relying on this testimony, the ALJ ruled the claimant failed to meet her burden of proof to demonstrate her respiratory symptoms arose out of her work.
We have reviewed the order and the record provided and we do not perceive reversible error. To the extent the ALJ relied on the evidence provided by the testimony of Dr. Schwartz that the claimant’s respiratory illness arose from preexisting circumstances distinct from work, the ALJ’s decision is a reasonable conclusion for the ALJ to draw and is supported by substantial evidence.
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ANDREA RUDOLPH W. C. No. 5-072-903-002 Page 5
The credibility attributed to expert medical opinion on the issue of causation is within the ALJ's province as fact-finder. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Here, the ALJ credited the respondent’s expert and resolved the conflicts in the evidence in favor of the respondent and we perceive no basis on which to disturb his resolution. Section 8-43-301(8), C.R.S. We may not interfere with the ALJ's assessment of the probative value of the evidence. See Eisnach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981). Further, the claimant’s argument notwithstanding, the ALJ need not address every piece of evidence if the basis of the order is clear from the findings, as they are here, and evidence not addressed was presumably rejected as not persuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Consequently, we perceive no error in the ALJ’s decision to find the claim for a respiratory occupational disease to be not compensable and to deny the request for medical and disability benefits related to that condition.
IT IS THEREFORE ORDERED that the ALJ’s order issue April 18, 2019, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David G. Kroll Brandee DeFalco-Galvin
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ANDREA RUDOLPH W. C. No. 5-072-903-002Page 7
CERTIFICATE OF MAILING
Copies of this order were mailed to the parties at the addresses shown below on
1/8/2020 ______ by _____ TT ________ .
ANDREA RUDOLPH, 6504 S CLARKSON ST, CENTENNIAL, CO, 80121 (Claimant) RITSEMA & LYON PC, Attn: PAUL KRUEGER ESQ, 999 18TH STREET SUITE 3100, DENVER, CO, 80202 (For Respondents)
NOTE: For clarification, the following entities have not been served with this Order. However, if you appeal a Final Order, you MUST include a copy of your appeal to the parties at the addresses listed above AND to the following parties:
COLORADO COURT OF APPEALS OFFICE OF THE ATTORNEY GENERAL 2 EAST 14TH AVENUE STATE SERVICES SECTION DENVER, CO 80203 RALPH L. CARR COLORADO JUDICIAL CENTER
1300 BROADWAY 6TH FLOOR DENVER, CO 80203
INDUSTRIAL CLAIM APPEALS OFFICE P.O. BOX 18291 DENVER, CO 80218-0291
67
INDUSTRIAL CLAIM APPEALS OFFICE
W.C. No. 5-017-566-001
IN THE MATTER OF THE CLAIM OF:
AMARJIT KAUR,
Claimant,
v. FINAL ORDER
KING SOOPERS INC,
Self-Insured Employer, Respondent.
The respondent seeks review of an order of Administrative Law Judge Felter (ALJ) dated June 13, 2019, that awarded the claimant permanent partial disability (PPD) benefits. We affirm.
I. Procedural History
Claimant suffered an initial injury on June 1, 2016, which was assigned W.C. number 5-017-566. After treatment, the claimant reached maximum medical improvement (MMI) on September 15, 2016 with no permanent medical impairment. Respondent filed a Final Admission of Liability (FAL) on February 17, 2017, admitting to 0% permanent impairment. The claimant did not object to this FAL and the claim closed as a result.
Claimant filed a second claim alleging that she sustained a new injury on February 6, 2017. This claim was assigned W.C. number 5-042-920. The respondent filed a notice of contest on April 5, 2017. On November 11, 2017, claimant filed an application for hearing on the issue of claimant’s petition to reopen her 2016 claim (based on a change of condition) or, in the alternative, for a determination that she suffered a new work-related injury on February 6, 2017. The hearing was scheduled to take place on April 24, 2018.
While the April 2018 hearing was pending, claimant concluded her treatment and was placed at MMI status on February 21, 2018, as determined by an authorized treating physician, Dr. Primack. Dr. Primack assigned a 20% whole person permanent impairment rating. Respondent filed a notice and proposal for a division sponsored independent medical examination (DIME), but only listed the W.C. number for the 2017 claim.
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AMARJIT KAUR W. C. No. 5-017-566-001Page 2
Respondent took the deposition of Dr. Primack on April 16, 2018. Prior to the deposition, Dr. Primack reviewed surveillance video of the claimant and, during his testimony, retracted the 20% rating. He assigned a reduced impairment rating of 12% whole person based solely on the specific disorders of the spine—explicitly eliminating any rating attributable to loss of range of motion.
The hearing was held before ALJ Felter on April 24, 2018, on the reopening versus new injury issue, as well as average weekly wage (AWW) and temporary disability (TTD) issues.
The ALJ’s June 27, 2018, order granted the claimant’s petition to reopen for a change of condition in the 2016 claim and dismissed her claim for a new work-related injury in the 2017 claim. Respondent appealed the ALJ’s order to the ICAO arguing the ALJ erred in reopening the 2016 claim.
The Panel affirmed the ALJ’s order in an order dated December 20, 2018. No further appeal was taken. Instead, respondent filed a new FAL, dated January 11, 2019, on the 2016 claim, admitting to 12% whole person permanent medical impairment.
II. The June 13, 2019 order
Claimant objected to the January 11, 2019, FAL and filed an application for hearing, essentially contending that the original 20% whole person permanent impairment rating was binding on respondent. Respondent counter-endorsed a reopening of the ALJ’s order as to error or mistake in the ALJ’s TTD calculations.
The hearing took place on May 29, 2019, on the issues of: 1) respondent’s request to reopen on the grounds of error or mistake; 2) resolving the “ambiguity” regarding Dr. Primack’s initial 20% rating and his subsequent reduced rating of 12%, and 3) whether respondent is “required to admit” to the 20% rating.
The ALJ issued his order on June 13, 2019. The ALJ acknowledged that in his prior June 28, 2018 order, he did not accurately incorporate the parties’ stipulations regarding AWW, or the amounts and dates of TTD. He granted the respondent’s petition to reopen, corrected the error, and issued a new order modifying the TTD benefits. These benefits are not in dispute in this appeal.
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AMARJIT KAUR W. C. No. 5-017-566-001 Page 3 With regard to the claimant’s argument that the respondent is liable for Dr. Primack’s 20% permanent impairment rating given on February 21, 2018, the ALJ made the following factual findings. The ALJ found that the January 11, 2019, FAL was based on Dr. Primack’s changed opinion of 12% whole person, expressed in his evidentiary deposition, which excluded a rating for range of motion (ROM), when his original report rated PPD at 20% whole person and included a rating for ROM. The ALJ ruled that the earlier 20% PPD rating was the appropriate rating because it was based on Dr. Primack’s examination of the claimant. According to the ALJ, Dr. Primack changed his rating by subtracting the ROM component after watching surveillance videos, but the ALJ determined that Dr. Primack’s original opinion was more credible and persuasive than his spontaneous declaration in the evidentiary deposition. The ALJ determined that the 20% rating was more thoroughly and objectively explained, and Dr. Primack’s subsequent reduction based on viewing surveillance film was entitled to little, if any, weight. The ALJ ordered the respondent liable to pay PPD benefits based on Dr. Primack’s original 20% whole person permanent impairment rating.
III. The parties’ positions on appeal
On appeal, respondent does not challenge the ALJ’s resolution of the ambiguity in Dr. Primack’s differing impairment opinions. However, respondent only contends that the ALJ erred in ordering it liable for PPD benefits based on a 20% whole person impairment rating. Respondent argues that a DIME was a necessary prerequisite to the ALJ’s final adjudication of the claimant’s permanent medical impairment and since a DIME did not take place, the ALJ lacked jurisdiction to order the respondents to pay additional permanent partial disability benefits. In support of its contention that the ALJ lacked jurisdiction in the absence of a DIME, respondent advances three arguments:
1. The 20% rating cannot be binding on the parties because the ALJ did not address this issue in his order and the claimant did not file a petition to review the order.
2. The 20% rating was not binding on the parties because respondent timely requested a DIME.
3. The 20% rating was not binding on the parties because respondent had no obligation to request a DIME on what was, at the date of filing, a closed claim.
Respondent submits that the rating of the authorized treating physician is binding only if respondent failed to request a DIME. However, respondent asserts that the ALJ made no findings of fact or conclusions of law addressing the issue of whether the 20%
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AMARJIT KAUR W. C. No. 5-017-566-001 Page 4 rating was binding. Instead, the ALJ found that the claimant sustained a 20% impairment because Dr. Primack’s original rating was more credible than his subsequent reduced 12% rating. Claimant did not file a petition to review the ALJ’s 2019 order, and respondent argues that the claimant cannot appeal the issue of whether the impairment rating was “binding” on the parties.
When Dr. Primack originally opined that claimant had a 20% rating on February 21, 2018, the 2016 claim was closed with a pending petition to reopen; the 2017 claim was under denial with a pending application for hearing on the issue of compensability; and both claims were consolidated for hearing to commence on April 24, 2018. Respondent timely filed a notice and proposal to select a DIME to challenge Dr. Primack’s February 21, 2018 rating. Respondent filed the notice and proposal to select a DIME under the 2017 claim but did not file under the 2016 claim because that claim was closed with the division. Respondent asserts that this request for a DIME precludes any binding effect of the 20% rating. Because the request for the DIME had been timely made, respondent essentially posits that the ALJ had no jurisdiction to order the respondent to pay a permanent disability impairment and should have ordered the claim to proceed through the DIME process. Respondent concedes that the notice and proposal dated March 6, 2018, was filed in the 2017 claim and not in the 2016 claim. However, because the 2016 claim and the 2017 claim had been consolidated for hearing, it argues that the doctrine of substantial compliance is operative and the notice and proposal was sufficient to meet the statutory requirements of § 8-42-107.2(2)(b). The respondent cites to Pinion v. U-Haul, W.C. No. 4-632-044 (April 25, 2007), aff’d sub. nom. Pinion v. Indus. Claim Appeals Off. (Colo. App. 07CA0922, April 3, 2008)(not selected for official publication)(although the filing of a notice and proposal has been characterized as a ‘jurisdictional’ prerequisite to obtaining a DIME, the doctrine of substantial compliance may be applied to requests for a DIME).
Respondent further cites that substantial compliance requires that a party intend to or actually make a good faith or colorable effort to comply with the statutory requirements. See Lockyer v. May’s Concrete, Inc.,W.C. No. 4-623-424 (Nov. 4, 2008). Respondent contends that it made a good faith or colorable effort to comply with the statutory requirements of § 8-42-107.2(2)(b), C.R.S. by notifying claimant and the division that respondent intended to obtain a DIME to dispute Dr. Primack’s 20% rating
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AMARJIT KAUR W. C. No. 5-017-566-001 Page 5 in the only open and active claim (the 2017 claim), which had been consolidated for hearing with the 2016 claim.
Lastly, respondent underscores that it had no obligation to file a DIME request—
specific to the 2016 claim—because that claim had been closed by operation of law and had not yet been reopened.
In respondent’s prayer for relief, it asks that the portion of the order requiring it to
pay PPD benefits of 20% be set aside so that the parties can now pursue the DIME process.
Claimant opposes respondent’s petition to review. She asserts that the order
finding respondent liable for the 20% rating “should be upheld, but on different legal grounds than relied upon by the ALJ in entering the order.” Claimant argues that the 20% rating became binding when respondent chose to file a FAL rather than pursue the DIME. Accordingly, respondent abandoned its DIME rights, thus conferring jurisdiction on the ALJ to determine the impairment rating. Claimant also challenges that the notice and proposal to select a DIME was substantially compliant with the DIME requirements because it was not filed in relation to the 2016 claim which (upon dismissal of the 2017 claim) ultimately became the effective claim. Notwithstanding the issue of substantial compliance, claimant reiterates that the filing of the FAL by the respondent was an abandonment of its DIME rights.
Further, claimant asserts that once the Panel affirmed the ALJ’s June 27, 2018
order and it thereby became a final order, respondent had two choices: it could have completed the DIME process to challenge the 20% rating, or it could have admitted for the 20% rating. The respondent did neither; instead it chose to admit for the lower rating of 12%.
Claimant argues that the ALJ was not free to determine which of Dr. Primack’s
rating was more “credible.” Rather, she argues that the ALJ was bound by the rating of 20% contained in Dr. Primack’s original report of February 21, 2018. In summation, the claimant asserts that “the ALJ should have ruled that Dr. Primack’s 20% . . . rating was binding on Respondent because [it] failed to meet the statutory requirements to contest the . . . rating.”
All of respondent’s contentions on appeal center on the argument that the initial
impairment rating of Dr. Primack was not binding. The claimant’s contentions on appeal center on the argument that the rating was binding. We agree with the claimant that the
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AMARJIT KAUR W. C. No. 5-017-566-001 Page 6 authorized treating physician’s rating was binding but not that a particular rating was necessarily binding.
IV. Discussion
The pertinent facts of the claim are not in dispute. Generally, the completion of a DIME process has several consecutive
components: filing of a notice and proposal to select a DIME; negotiating a physician; filing of an application for DIME; selection of the physician; scheduling, paying for, and attending the appointment with the selected physician; and obtaining the opinion report from the physician. Rule 11 WCRP1, 1 Code Colo. Reg., 104-3 at 7. While most of these steps have regulatory deadlines, the only part of the process that carries a statutory jurisdictional deadline is the initial filing of a notice and proposal to select a DIME within 30 days of the authorized treating physician’s rating or of the filing of a FAL. Section 8-42-107.2(2)(a) and (b), C.R.S.
Here, respondents filed a notice and proposal to select a DIME, albeit that it listed
the docket number for the 2017 claim. We are persuaded that in filing the notice and proposal to select a DIME, the respondent substantially complied with the jurisdictional requirement in the 2016 claim as well. Pinion v. U-Haul, supra. Claimant’s injuries resulted either from the 2016 accident or from the alleged 2017 accident. The permanent impairment likewise could only be attributed to either the 2016 accident or the 2017 claim. Respondent could not have known which claim would control until the ALJ resolved the question in his June 27, 2018 order.
Hence, when the June 27, 2018, order became final upon the issuance of the
Panel’s order on December 20, 2018, there was no jurisdictional barrier to the respondent pursuing the DIME process by filing an application for a DIME at that belated date. See Adams v. Manpower, W.C. 4-389-466, (August 2, 2005)(failure to file an application for DIME within the time limits [set forth in the applicable WC Rules of Procedure] does not constitute a jurisdictional barrier to the DIME).
Respondent had that option but instead chose to admit for an uncertain, conflicting, and ambiguous impairment rating. We agree that respondent abandoned the DIME process by 1) not pursuing it immediately following the filing of the notice and proposal to select the DIME, or 2) not pursuing it when the ALJ’s June 27, 2018, order 1 Rule 11-3(A)(3) was in effect throughout this claim. The rule was amended and renumbered as Rule 11-4 effective January 1, 2019, 1 Code Colo. Reg., 7 CCR 1101-3.
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became final. Although left unsaid, respondent had a third choice; it could have applied for a hearing to resolve the rating ambiguity before deciding whether to admit for said rating or to further pursue the DIME.
Here, respondent took no action to further pursue the DIME process until after the ALJ entered an adverse order. We conclude that in filing its FAL, the respondent effectively abandoned the DIME process. In our view, the abandonment of the DIME process has the same effect as if the requestor did not file the notice and proposal in the first instance, i.e.-the authorized treating physician’s findings and determinations shall be binding on all parties and on the division. Section 8-42-107.2(2)(b), C.R.S.
The instant claim is nearly identical to the claim in Montoya v. Indus. Claim Appeals Office, 203 P.3d 620, (Colo. App. 2008). In Montoya, the authorized treating physician assigned 19% whole person permanent impairment. Respondents filed a notice and proposal for a DIME. Thereafter, the same physician amended and reduced the rating to 15%. Respondents cancelled the DIME appointment and filed a FAL for 15% impairment. Claimant objected to the FAL and filed an application for hearing. After the hearing was held, the ALJ determined that the claimant sustained 15% permanent impairment. Claimant conceded that it was okay for the respondents to cancel the DIME, but argued that this bound the respondents to the initial rating. The Court of Appeals held that nothing in the statutes or rules restricted the respondents’ right to cancel the DIME. The court stated, “The question before the ALJ involved only a decision as to which rating was to be given controlling effect under the applicable procedure . . ..” Id. at 622. The court determined that the respondents’ FAL did not extinguish the parties’ right to have the ALJ determine which of the two ratings should apply. Stated differently, the cancellation (or abandonment) of the DIME process did not bind the respondents to the initial rating but rather conferred jurisdiction on the ALJ to determine which rating applied.
Under the facts of this claim and the effective abandonment of the DIME process by respondent, claimant properly applied for a hearing to have the ALJ establish the rating of impairment. Based on Montoya, we hold the ALJ had jurisdiction to resolve the ambiguous PPD impairment.
It is well established that resolution of the ambiguities in an authorized treating physician’s impairment rating is a factual question for the ALJ. E.g., Calvillo v. Intermountain Wood, W.C. No. 4-462-927 (September 24, 2002). In this case, however, the respondents did not seek the resolution of some ambiguity in a medical report before they were required to file an admission of resort to a DIME. See Blue Mesa Forest v.
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V. Conclusion
Respondent timely requested a DIME by filing a notice and proposal to select a
DIME. By filing a FAL, respondent abandoned the DIME process and thereby conceded that the rating of Dr. Primack would control. However, at the time the DIME process was abandoned, Dr. Primack’s ultimate rating was uncertain and internally conflicting. The ALJ had jurisdiction to resolve the ambiguous PPD rating. Once the controlling impairment was established, the ALJ did not err in ordering respondent liable to pay it.
IT IS THEREFORE ORDERED that the ALJ’s order issued June 13, 2019 is
affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
John A. Steninger Brandee DeFalco-Galvin
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CERTIFICATE OF MAILING
Copies of this order were mailed to the parties at the addresses shown below on
1/8/2020 ______ by _____ TT ________ .
KAPLAN MORREL, Attn: RONDA K CORDOVA ESQ, 6801 WEST 20TH STREET SUITE 201, GREELEY, CO, 80634 (For Claimant) LAW OFFICE OF STEVEN J PICARDI PC, Attn: STEVEN J PICARDI ESQ, 12900 STROH RANCH WAY SUITE 110, PARKER, CO, 80134-7401 (For Respondents)
NOTE: For clarification, the following entities have not been served with this Order. However, if you appeal a Final Order, you MUST include a copy of your appeal to the parties at the addresses listed above AND to the following parties:
COLORADO COURT OF APPEALS OFFICE OF THE ATTORNEY GENERAL 2 EAST 14TH AVENUE STATE SERVICES SECTION DENVER, CO 80203 RALPH L. CARR COLORADO JUDICIAL CENTER
1300 BROADWAY 6TH FLOOR DENVER, CO 80203
INDUSTRIAL CLAIM APPEALS OFFICE P.O. BOX 18291 DENVER, CO 80218-0291
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STATE OF COLORADO OAC Hearing Date: DEPARTMENT OF LABOR AND EMPLOYMENT Venue: DIVISION OF WORKERS’ COMPENSATION
W.C. Number:
PREHEARING ORDER FOR PREHEARING CONFERENCE HELD ON
In The Matter of the Workers’ Compensation Claim of:
Claimant, v.
, Employer, AND
, Insurer/Respondents
A prehearing conference was held on before Prehearing Administrative Law Judge (PALJ) pursuant to Section 8-43-207.5, Colorado Revised Statutes (C.R.S.). Respondents appeared through counsel, . Claimant appeared through counsel, .
Notice pursuant to Rule 9-2(C) of the Workers’ Compensation Rules of Procedure (W.C.R.P.) is proper or is waived by the parties regarding the following issues:
1. Respondents' motion to compel responses to discovery pursuant to Sections 8-43-207(1)(e) and 8-43-207.5, C.R.S.; and Rule 9-1, W.C.R.P.
2. Respondents’ motion for an extension of time to commence the hearing pursuant toSection 8-43-209, C.R.S.
This PALJ has considered the statements of the parties, reviewed the electronic files maintained by the Division of Workers’ Compensation (Division) and Office of Administrative Courts (OAC) concerning this claim, and is fully advised regarding the issues for determination.
This admitted claim is currently set for hearing on on issues that include reasonably necessary and related medical benefits. Claimant states that this claim involves a shooting while he was working for employer that caused both psychological/mental conditions as well as allegations of related headaches, insomnia and other conditions. Claimant states that there has been a denial of prescription medications, massage therapy, an alpha stim unit, and botox injections. Respondents sent Claimant interrogatories, which Claimant answered on December 23, 2019. On December 24, 2019 Respondents sent a follow up that Interrogatories Nos. 12-14 were incomplete and inadequate and requested Claimant provide appropriate answers. Claimant states that Claimant disagreed.
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Respondents seek to compel complete responses to interrogatories nos. 12-14. The questions involve requests for social media postings that may reveal Claimant’s physical activities, hobbies, work and medical conditions for the past year as this may show evidence that may reflect on Claimant’s overall function and whether there is any need for the medical care sought. Respondents’ state that in addition to the psychological injuries and conditions claimed that Claimant is alleging difficulty engaging in social contact, virtually incapable and afraid of leaving his home and alleges is unable to return to any modified employment. Claimant objects to providing the information as counsel argues that it would be extremely intrusive, invasive, and inappropriate for the attorney to scour Claimant’s personal accounts. Claimant has no objection to producing the information with regard to interrogatory number 12 which only asks for social media accounts user names, dates created, date last accessed and if information was deleted. However, Interrogatory number 13 requests a copy of every photograph, posting, video, notes, profile, messages sent and received as well as comments as they existed on the date of service of the discovery requests. Claimant states that reviewing each and every post would take an insurmountable amount of time to review and counsel is not even aware of what accounts Claimant has. Claimant further states that Claimant uses the Facebook messenger system to conduct private conversations with his spouse and those should not be discoverable. Finally, Claimant’s objections to these interrogatories is that it would be “overly broad and burdensome; not relevant to the present dispute over medical benefits.” Respondents conceeed that pursuant to the interrogatory, they would only be requesting information from the date the interrogatories were issued. They further agreed that they were not requesting the personal messages between Claimant and his spouse but those messages that had been viewed by more than just his spouse.
Claimant has not advanced sufficient analysis in support of the claim that producing the requested information would be burdensome as counsel does not know how many accounts Claimant has or how many postings are on the accounts for a determined period of time. An individual responding to discovery must provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure required to produce the requested documents in order to support such an objection. Horizon Holdings v Genmar Holdings 209 F.R. D. 208, USDC, (D. Kan.), 2002. Unparticularized claims of burden and expense are insufficient. Marens v Carrabba’s Italian Grill, Inc. 196 F.R.D. 35, 38-39 USDC (D. Maryland), 2000.
The general case law appears to hold that social media users do not have a reasonable expectation of privacy regarding their social media accounts, [Social-Media Discovery It’s a matter of proportion, 31 W. Mich. U. T. M. Cooley L. Rev.403 ( 2014), The Intersection of Facebook and the Law: 65 Ark. L.Rev.7 (2012)]. Thus the balancing of the interests required by the Martinelli v District Court, 199 Colo. 163, 174-75, 612 P.2d 1083, 1091-92 (Colo. 1980); and the Judd v Cedar Street Venture, 256 P. 3d 687(Colo. 2011) cases, are not required.
In the view of this PAL, discovery is limited by three factors, those are: (1) privilege, (2) relevance, and (3) proportionality. See DCP Midstream v Anadarko Petroleum, 303 P. 3d 1187 (Colo. 2013). Proportionality is controlled by (a) the importance of the issues at stake in the action, (b) the amount in controversy, (c) relative access to relevant information, (d) the parties’ resources, (e) the importance of the discovery in resolving the issues, (f) and whether the burden or expense of the proposed discovery outweighs its likely benefit. Colo. Rule Civ. Proc. 26(b)(1).
The information sought by the respondents from the claimant’s social media accounts is directly material to their investigation and preparation in this matter. It has long been held in Colorado, that a party is entitled to complete discovery in order to prepare for trial Kerwin v District Court,
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Respondents have asserted a safety rule violation and termination for cause based respectively on allegations Claimant was running and using an electronic device. Respondents indicate there are a total of six cameras in the area where Claimant was employed, which each run twenty-four hours a day, seven days a week. For three weeks, Claimant’s request would total 3,024 hours of video footage. For five days, the request is for 720 hours. Respondents represent that it would require one hour of work for an employee to produce twenty four hours of footage, which equates to thirty hours of work to produce the requested footage. Respondents argue this is unduly burdensome. In determining the appropriate relief, this PALJ has considered the burden of producing the requested videos on Respondents, as well as the potential probative value and relevance, as required by C.R.C.P. 26(b)(1). As noted by Respondents, the surveillance videos requested by Claimant are not the only evidence available to support Claimant’s position with regard to these issues. Claimant may call co-employees as witnesses in addition to his own testimony regarding the practices of the employer. Furthermore, the employer only retains videos of 57 days, so the oldest available videos are from February, more than two months after the date of injury. To the extent the videos do disclose individuals acting contrary to the policies asserted by the employer, they would do so for a time frame well after the injury. Respondents argue this renders any of the videos irrelevant to the issues currently pending. Claimant argues the videos are relevant, and the arguments raised by respondents go toward the weight of the evidence, an issue which should be reserved for the trier of fact. This PALJ agrees. While the relevance of the requested materials may be limited, they will potentially demonstrate the actual business practices of the employer and therefore be relevant to both a safety rule and termination analysis. However, the arguments raised by Respondents do require this PALJ to evaluate the scope of requested discovery and weigh the potential relevance against the burden placed upon Respondents to produce the videos. The production of discovery carries with it an inherent burden that parties must accept as part of the litigation process. Here, Respondents have asserted that Claimant violated a safety rule and was responsible for his own termination. In making those assertions, Respondents have opened the door for an inquiry into their business practices and accordingly bear some burden for the production of potentially probative evidence. Claimant has requested five full days of video, which is an excessive burden not outweighed by the evidentiary value. While the facility in question operates at full capacity for twenty-four hours a day, there is no need for Claimant to review full days of footage. Eight hours of footage per day for five days provides Claimant with an entire standard work-week of footage. Forty hours from six cameras will provide Claimant with a clear representative sample of actual practices within the facility, while requiring Respondent to spend ten hours to produce the footage. Claimant has requested that this PALJ specify the time period for which footage shall be produced. However, Claimant himself is in the best position to identify time periods. This PALJ is unfamiliar with the work policies and practices of the employer, and so will provide Claimant with an opportunity to specify dates and times of video footage to be produced. Respondents have requested a protective order limiting distribution of the footage to counsel and the Court. Claimant does not object.
