In re Claim of Lange, 011819 COWC, 4-907-620-002

Docket Nº:W.C. 4-907-620-002
Case Date:January 18, 2019
KERN USA, Employer,
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...

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