FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated June 1, 2011, that denied and dismissed her claim for an increase in her average weekly wage (AWW), and that denied and dismissed her claim for temporary disability indemnity benefits for the period of November 8, 2010, through and including November 16, 2010. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was injured in the course and scope of her employment on December 18, 2005. On January 6, 2006, the respondents filed an amended general admission of liability admitting for medical and indemnity benefits, and an AWW of $377.80.
On January 20, 2006, the claimant, through her former counsel, requested a hearing on AWW. Hearing was scheduled for June 2, 2006.
As pertinent here, at the time the claimant retained her former counsel, she entered into a fee agreement, which contained a Power of Attorney provision that allowed her former counsel to act in the name and place of the claimant, and to perform every act necessary to be done for claimant, including receiving and endorsing the claimant's name on any checks. The fee agreement also contained a provision that disallowed her former attorney from settling the case without her permission. Those provisions specifically provide as follows:
9. Client authorizes the employer and/or insurer to deliver Workers' Compensation benefits directly to Attorney and understands that settlement of this case may not be made without Client's permission.
10. Client, deposing special trust and confidence in Attorney, do make, constitute
and appoint Attorney, [former law firm and individual attorney], true and lawful attorney for Client to act in the name, place and stead for Client. Client hereby gives and grants unto [former law firm and individual attorney] a full Power of Attorney to do and perform all and every act and thing whatsoever requisite and necessary to be done for Client, as fully to all intents and purposes as Client might or could do if personally present, including but not limited to the endorsement by the [former law firm and individual attorney] of Client's name on any Workers' Compensation checks payable to Client. [Former law firm and individual attorney] is also authorized to withhold Attorney's fees from any funds payable to Client. The power of Attorney shall not be affected by the disability of the principal, being Client.
Prior to the commencement of the June 2, 2006, hearing, the claimant and the respondents entered into a "Joint Stipulation." While the claimant did not sign the Stipulation, her former counsel signed the Stipulation on her behalf. Pursuant to this Stipulation, both parties agreed to the claimant's AWW being $433.80 for all purposes in the case. The Stipulation states in pertinent part as follows:
1. Claimant's AWW is $433.80 per week for all purposes in this case. Respondents will file an admission admitting for the AWW of $433.80, TTD rate $289.20. Respondents will recalculate Claimant's TPD and TTD benefits based on the Average Weekly Wage of $433.80. Respondents will take credit for all indemnity payments previously paid in this case.
Pursuant to the provisions of the Stipulation, the claimant withdrew her application for hearing and vacated the hearing that was scheduled for June 2, 2006.
Thereafter, the respondents filed general and final admissions which listed the claimant's AWW of $433.80, and which were mailed to the claimant. On April 19, 2006, the respondents filed an amended general admission of liability, listing AWW of $433.80. The Stipulation was attached to this amended general admission. Further, in the Remarks section of the amended general admission, it states "Per Joint Stipulation, both party has (sic) agreed to new AWW of $433.80 per week." Additionally, on October 6, 2006, the Respondents filed an amended final admission, admitting for the impairment rating and denying Grover medical benefits. The stipulated wage of $433.80 again was set forth on this admission. Further, on October 10, 2006, the claimant, through her present counsel, objected to the respondents' amended final admission, filed an application for hearing, and requested a Division Independent Medical Examination. In her application for hearing, the claimant did not endorse AWW as an issue to be considered at the hearing. On January 11, 2008, the respondents filed a final admission admitting for the findings of the Division IME. The stipulated AWW of $433.80 again was set forth in the final admission. The claimant did not file an objection to the final admission, or file an application for hearing on any issues.
On May 17, 2010, the claimant's condition worsened and she underwent additional surgery by Dr. Sung. The claimant's claim was reopened.
In an unsigned medical release dated November 3, 2010, the claimant's surgeon, Dr. Sung, released the claimant to work with no restrictions beginning November 8, 2010. On November 9, 2010, the respondents filed a general admission terminating temporary disability consistent with Dr. Sung's medical release. Then, on November 17, 2010, Dr. Polanco assigned the claimant work restrictions and released the claimant to modified work duties. On December 28, 2010, the respondents filed an amended general admission reinstating TTD effective November 17, 2010.
On December 30, 2010, the claimant filed an application for hearing. The claimant endorsed AWW, temporary total benefits from May 26, 2010, to MMI, petition to reopen claim, and medical benefits as issues to be considered at the hearing. A hearing was held, and on June 1, 2011, the ALJ entered his specific findings of fact, conclusions of law, and order. In his order, the ALJ denied and dismissed the claimant's claim for an increase in her AWW, and denied the claimant's claim for temporary disability indemnity benefits for the period of November 8, 2010, through and including November 16, 2010. The ALJ specifically found that the claimant failed to establish by a preponderance of the evidence that her AWW should be altered from that which she and the respondents agreed to in the Stipulation, that she failed to show a sufficient legal or factual basis for disregarding the Stipulation on AWW, and that she failed to prove that she was entitled to TTD for the nine day period since Dr. Sung released the claimant to full duty during this time and TTD benefits were properly terminated pursuant to § 8-42-105(3)(c) and W.C. Rule of Procedure 6-1, 7 Code Colo. Reg. 1101-3. The ALJ specifically concluded in pertinent part as follows:
CONCLUSIONS OF LAW * * * *
5. The Claimant has not provided sufficient evidence that her attorney did not have authority to negotiate an agreement and enter the written stipulation on her average weekly wage. Instead, the Claimant contends that because she did not specifically authorize the stipulation, it should be voided. The stipulation is clear and unambiguous; it states that the average weekly wage is agreed upon `for all purposes in the case.' It is an issue upon which both parties compromised their positions and the basis upon which the parties agreed to vacate a previously set hearing. That agreement has been in effect for over 5 years. The ALJ Finds that Claimant has failed to show a legal or factual basis for disregarding the parties' prior stipulation on average weekly wage.
I.
On review, the claimant argues that the ALJ's denial and dismissal of her request for an increase in her AWW amounts to reversible error as a matter of law. The claimant reasons that the Stipulation is not binding because her former attorney did not have actual or implied authority to "settle" the issue of her AWW. The claimant reasons that she did not sign the Stipulation, and she gave un-rebutted testimony at the hearing that she did not give permission to her former attorney to "settle" the issue of AWW. The claimant also argues that the respondents presented no evidence that there was consent. ( Claimant's Brief, p. 6) The claimant, therefore, contends that the Stipulation is void ab initio. We are not persuaded by the claimant's arguments.
Parties in workers' compensation proceedings frequently waive, by words or actions, various legal rights and stipulate to certain facts, such as a claimant's AWW. E.g. Schlage Lock v. Lahr, 870 P.2d 615, 616 (Colo. App. 1993) (petitioner bound by admission); see Jordan v. Black Gold Asphalt Co., W.C. No. 4-562-913 (September 28, 2004) (parties stipulated to AWW), aff'd on other grounds, Colo. App. No. 05CA0198, Aug. 25, 2005 (NSOP).
It is well settled that a party may stipulate away valuable rights so long as it is not a violation of public policy. Cherokee Metropolitan Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006); USI Properties East, Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997). "A party's participation in a stipulation incorporated into a decree precludes that party from advancing legal contentions contrary to the plain and unambiguous terms contained therein." USI Properties East, Inc. v. Simpson, 938 P.2d at 173. Courts should give effect to stipulations, but "if there is a sound reason in law or equity for avoiding or repudiating a stipulation, a party is entitled to be relieved from its requirements upon timely application." Lake Meredith Reservoir Co. v. Amity Mut. Irrigation Co., 698 P.2d 1340, 1346 (Colo. 1985). Whether to relieve a party of a stipulation is within the discretion of the trial court. Id.
Here, we conclude that the ALJ did not commit reversible error in denying and dismissing the claimant's request for an increase in her AWW. The evidence supports the ALJ's finding that the claimant gave her former attorney authority to act on her behalf regarding AWW. As detailed above, the fee agreement provides, in pertinent part, that the claimant appointed her former attorney "to act in the name, place and stead for [the claimant]." Moreover, the fee agreement provides that the claimant gave her former attorney "a full Power of Attorney to do and perform all and every act and thing whatsoever requisite and necessary to be done for [the claimant]. . . ." The Power of Attorney provision contained within the fee agreement, does not relate solely to an authorization to obtain, sign, and negotiate checks or related instruments on her behalf, as is argued by the claimant. ( Claimant's Brief In Support, p. 5) Further, there is substantial evidence and reasonable inferences drawn from the evidence that support the ALJ's implicit finding that for approximately five years, the claimant was aware of the Stipulation regarding her AWW of $433.80. As detailed above, in 2006, the respondents filed an amended general admission of liability and a final admission of liability listing the claimant's AWW of $433.80. In 2008, the respondents filed another final admission listing the stipulated AWW of $433.80. The claimant failed to file an objection to the final admission, or file an application for hearing on the issue of her AWW. Section 8-43-301 (8), C.R.S.
Additionally, in his order, the ALJ held that the claimant failed to present sufficient evidence of any mistake, either unilateral or mutual, pertaining to the Stipulation. While the claimant argues that she testified at the hearing that she did not give her former attorney permission to "settle" the issue of AWW, the claimant failed to request and procure a transcript of the hearing for our review of this issue. Consequently, we are required to presume that the
ALJ's findings of fact on this issue are supported by substantial evidence. See Nova v. Industrial Claim Appeal's Office, 754 P.2d 800 (Colo. App. 1988) (where party fails to procure transcript for appeal, we must presume ALJ's pertinent findings of fact are supported by substantial evidence). Additionally, the ALJ did not find that the Stipulation was a settlement or partial settlement but, rather, was a stipulation which is a form of a judicial admission. We perceive no error in the ALJ's finding on this issue. See Jordan v. Black Gold Asphalt Co., supra.
Finally, the claimant's reliance on Dworkin, Chambers Williams, P.C v. Provo, 81 P.3d 1053 (Colo. 2003) is misplaced. In Dworkin, the court determined that penalties could not be imposed on an attorney who advised an insurer to violate an order. The court reasoned that an attorney is not "any other person" within the meaning of § 8-43-304, C.R.S. if the order was not directed to the attorney and if the attorney had no power to bind the insurer. Importantly, the attorney in Dworkin did not act on behalf of the insurer but, rather, acted in an advisory capacity to the insurer regarding the claimant's benefits. Conversely, here, the claimant signed a Power of Attorney to her former counsel. As detailed above, the evidence supports the ALJ's finding that when stipulating to the claimant's AWW, the former attorney acted on behalf of the claimant and possessed such authority to act on her behalf.
II.
The claimant also argues that she is entitled to temporary TTD from May 26, 2010. The claimant asserts that the No Restriction Form that the respondents relied upon when terminating temporary benefits from November 8, 2010, through November 16, 2010, was unsigned. The claimant further argues that she did not receive her disability check until after December 28, 2010, the date that the respondents filed their amended general admission and, therefore, the insurer improperly withheld past due benefits for approximately seven weeks. Moreover, the claimant argues that no evidence was presented showing that she worked. Consequently, the claimant argues that the ALJ's denial of benefits prior to MMI was an abuse of his discretion. We reject the claimant's arguments.
Section 8-42-105(3)(c), C.R.S. specifically provides as follows:
(3) Temporary total disability benefits shall continue until the first occurrence of any one of the following:
* * *
(c) The attending physician gives the employee a written release to return to regular employment;
See also W.C. Rule of Procedure 6-1, 7 Code Colo. Reg. 1101-3.
Here, we conclude that the ALJ did not err in denying benefits prior to MMI or for the nine day period of time from November 8, 2010, to and including November 16, 2010. The ALJ found that the release was sufficient for the respondents to terminate TTD. Implicit in the ALJ's findings is the conclusion that Dr. Sung was "the attending physician" for purposes of releasing the claimant to return to work. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997) (determination of attending physician is question of fact for resolution by ALJ). The release is printed on Dr. Sung's office letterhead and it, therefore, was reasonable for the ALJ to conclude that it was a valid release from Dr. Sung. Further, where, as here, a party fails to procure a transcript for appeal, we must presume that the ALJ's pertinent findings of fact on these issues are supported by substantial evidence. See Nova v. Industrial Claim Appeal's Office, supra. Moreover, the unsigned release did not contravene the requirements set forth in § 8-42-105(3)(c) and Rule of Procedure 6-1, 7 CCR 1101-3. Both Section 8-42-105(3)(c), C.R.S. and W.C. Rule of Procedure 6-1, 7 Code Colo. Reg. 1101-3 permitted the respondents to terminate TTD once the claimant's attending physician gave a written release to return to regular employment.
Additionally, to the extent the claimant argues that the denial of TTD was inappropriate because the respondents did not present evidence to show that the claimant worked during this time, this argument is without merit. Again, as detailed above, § 8-42-105(3)(c), C.R.S. provides that temporary disability benefits will terminate once the attending physician provides the claimant with a written release to return to regular employment. Consequently, despite the claimant's argument to the contrary, the respondents were not required to show that the claimant actually returned to work because they had a written release returning the claimant to full duty employment.
Further, to the extent the claimant argues that the insurer withheld past due benefits for approximately seven weeks "per her un-rebutted testimony" and only resumed payments beginning after December 28, 2010, this argument also must fail. ( Claimant's Brief, p. 7) The ALJ found that the respondents restarted TTD beginning November 17, 2010. ( Findings of Fact #13) Absent a transcript of the hearing, we are required to presume that the ALJ's findings of fact on this issue are supported by substantial evidence. See Nova v. Industrial Claim Appeal's Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order issued June 1, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kris Sanko
______________________________ Brandee DeFalco-Galvin
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Attn: VY TAING, C/O: BROADSPIRE, FRESNO, CA, (Insurer).
DANIEL O. ADKINS, ESQ., Attn: DANIEL O. ADKINS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
MCCREA BUCK, LLC, Attn: JAMES B. BUCK, ESQ./AARON HAYDEN, ESQ., DENVER, CO, (For Respondents).