However, specific performance can only be accomplished according to the terms of the parties' contract. Cox v. Bertsch, 730 P.2d 889, 892 (Colo.App. 1986); Otis Oil Gas Corp. v. Maier, 284 P.2d 653, 656 (Wyo. 1955). A court may not make a contract for the parties and then order it to be specifically performed.

We note that the court of appeals has also recently interpreted the punitive damages statute contrary to the position set forth by this court with regard to equity actions. In Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986), the court of appeals stated that "in recognition of the merger of law and equity, the modern trend is to allow exemplary damages in addition to equitable relief where injury is caused by a tort." 730 P.2d at 892-93.

Id. at 1009, citing Podleski. Finally, the Davies rule was invoked in Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986). In that case, plaintiffs were awarded specific performance of a real estate sales contract and also exemplary damages.

Contracts must be reasonably certain to justify a decree of specific performance. Courts cannot make contracts for parties and then order them specifically performed. Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986). Thus, the indefiniteness of a contract is an adequate reason to refuse specific performance.

The trial court's award of exemplary damages here was supported by case law existing when the judgment was entered. Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986). The subsequent invalidation of Cox v. Bertsch and other cases by the supreme court in Mortgage Finance, Inc. v. Podleski, supra, rendered the award of exemplary damages here erroneous but not void within the meaning of C.R.C.P. 60(b)(3).

Tr. at 5, 8. See Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986); Walker v. Excel Corp. W.C. No. 4-535 (September 24, 2003) (error may not be predicated on ruling which admits evidence unless a timely objection to strike the evidence appears of record). The ALJ determined the amount of the overpayment only to the extent necessary to impose a reasonable penalty, and noted that the delay by the claimant in notifying the insurer of his return to work resulted in the insurer overpaying the claimant's TTD benefits. Under these circumstances, we conclude the issue of overpayment, to the extent necessary to determine what was owed the claimant and its impact on the penalty claims, was sufficiently raised and tried by consent of the parties.

Consequently, the record suggests the issue of authorization for Dr. Palko-Schraa's treatment was tried by consent. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986). In any case, the respondents dispute the ALJ's finding that Dr. Weber terminated her treatment of the claimant because the claimant violated a controlled substance contract.

(Tr. pp. 7, 12, 14). It follows, the issue of whether the claimant's injury was caused by his job duties in the freezer department was tried by consent and the respondent waived any objection to the ALJ's consideration of this evidence. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986); C.R.E. 103(a)(1) (error may not be predicated on ruling which admits evidence unless a timely objection to strike the evidence appears of record). We also note that there is substantial evidence in the record to support the ALJ's finding of a causal connection between the employment and the claimant's cervical condition.

Under these circumstances, the issue of authorization was tried by consent. See Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986) Ms. Merriam testified the claimant had been treating with Judy Eskelsson, "who is our nurse practitioner, and Judy had referred her to Dr. Dohm."

We are also mindful of the fact that issues may be implicitly tried by consent. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Cox v. Bertsch, 730 P.2d 889 (Colo.App. 1986). However, § 8-41-304(4) contemplates a twenty day cure period after notice of an alleged violation.