IN THE MATTER OF THE CLAIM OF: DANIEL LANGE, Claimant,
v.
KERN USA, Employer,
and
FEDERAL INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 4-907-620-002
Colorado Workers Compensation
Industrial Claim Appeals Office
January 18, 2019
RITSEMA & LYON PC, Attn: KRISTIN A CARUSO ESQ, (For
Respondents)
FINAL ORDER
The
claimant seeks review of an order of Administrative Law Judge
Edie (ALJ) dated September 10, 2018, that ordered penalties
assessed against the claimant for failing to abide by an
order directing him to repay the respondents an overpayment
and for failing to attend a scheduled medical appointment. We
affirm the penalties pertinent to the repayment and correct
the amount of the penalties related to the medical
appointment.
The
claimant injured his groin and lower abdomen in a work
related incident on December 27, 2012. After considerable
treatment and missed time from work, the claimant was placed
at maximum medical improvement (MMI) on September 6, 2016.
The respondents filed a Final Admission of Liability (FAL) on
October 28, 2016, admitting for a 17% permanent impairment
rating leading to an award of $91,836.60 in combined
temporary and permanent indemnity benefits. The FAL awarded
maintenance medical benefits after MMI.
The
claimant challenged the FAL by submitting an application for
a hearing requesting permanent total disability benefits. In
an order of June 29, 2017, a previous ALJ denied the request
for permanent total benefits. The ALJ’s order was
affirmed on appeal to the Industrial Claim Appeals Office in
a decision dated October 11, 2017. There were no further
appeals related to the indemnity benefits awarded by the FAL.
The
respondents made a claim for an overpayment premised on
§ 8-42-107.5 C.R.S. which limits the amount of combined
temporary and permanent partial disability benefits that may
be awarded to a claimant. The combined benefits cap
applicable for the claimant’s date of injury is
$78,482. Following a hearing on November 7, 2017, ALJ
Lamphere determined the claimant had been overpaid
$13,354.60. In an order of December 1, 2017, the claimant was
ordered to repay this overpayment to the respondents at the
rate of $50 per month. Despite requests from the respondents,
the claimant made no payment.
The
respondents also complained that the maintenance medical
benefits provided the claimant, which consisted entirely of
narcotic pain medications, were not reasonable and necessary.
In the same order of December 1, ALJ Lamphere agreed the
maintenance medications were not reasonable. The ALJ required
the respondents to pay only for the medical expenses
“associated with weaning claimant from the opioid
medication”. Those medical benefits were ordered,
“conducted through Dr. Polanco and continue in duration
and include all treatments which are reasonable and necessary
to safely withdraw claimant from opioids.” The
respondents notified the claimant he was required to attend a
medical appointment with Dr. Polanco they had arranged for
December 18, 2017. The claimant declined to attend the
appointment. The respondents set a second appointment with
Dr. Polanco for January 4, 2018. A prehearing order was
obtained from PALJ Steninger compelling the claimant to
attend the January 4 appointment. The claimant again refused
to participate in the appointment.
The
respondents requested a hearing to seek penalties related to
an asserted failure by the claimant to comply with the orders
of ALJ Lamphere concerning repayments and PALJ Steninger
pertinent to attending scheduled medical appointments. The
respondents also sought to extinguish the claimant’s
eligibility for further medical maintenance benefits.[1]
A
hearing was held before ALJ Edie on September 5, 2018. The
claimant testified but no copy of the transcript was ordered
to be included in the record on appeal. The respondents
submitted documents consisting of various ALJ and PALJ
orders, as well as correspondence exchanged between the
unrepresented claimant and respondents’ counsel. At the
conclusion of the hearing, on September 10, the ALJ found the
claimant failed to comply with the order to repay the
overpaid benefits and the order to attend medical
appointments with Dr. Polanco.
The ALJ
invoked § 8-43-304(1) and...
