Opinion
W.C. No. 4-730-531.
November 10, 2008.
ORDER
The claimant and respondents both seek review of an order of Administrative Law Judge Stuber (ALJ) dated June 30, 2008 that imposed penalties against the claimant and against the insurer. The respondents do not appeal the imposition of penalties against them but rather contend that the ALJ committed error by incorporating into his order a finding of fact that the claimant was injured when she fell through a floor. We dismiss the respondents' petition to review without prejudice and otherwise affirm the order.
I.
The respondents appeal contending that the ALJ committed error by incorporating into his order a finding of fact that was irrelevant to the issues endorsed for hearing, and was not properly and fully addressed at the hearing. The ALJ found that when the claimant went into an electrical room a portion of the floor collapsed and the claimant fell through the floor, which left the claimant holding herself up by her arms. Although this is an admitted claim, the respondents dispute the mechanism of injury and in particular that the claimant fell through the floor. The respondents challenge the nature and extent of the claimant's alleged injuries and argue that the issue of whether the claimant actually fell through the floor should not have been decided at a hearing where the only issue was penalties. However, we hold that the disputed portion of the ALJ's order is not final and reviewable.
The ALJ's disputed finding that the claimant fell through the floor was a determination not integral to the resolution of the issues of penalties before the ALJ. Rather, the respondents advance this argument concerning the possible legal effect of the finding in some future litigation. Because the effect of the finding in future litigation is both hypothetical and speculative, we need not address the argument. There has been no award or denial of benefits in the hypothetical litigation, and any order which we might issue would be merely advisory. See Board of Directors v. National Union Fire Insurance Company, 105 P.3d 653 (Colo. 2005) (courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur).
Section 8-43-301(2), C.R.S. 2008 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute, the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
The finding complained of by the respondents is not a dispositive one in the award of penalties, and the respondents merely seek an advisory ruling on the effect of this finding in the event a dispute on benefits in the future. We conclude that this aspect of the order is currently not subject to review. See Taylor v. Kemper Insurance W. C. No. 4-467-440 (November 25, 2005). Therefore the respondents' petition to review is dismissed without prejudice.
II.
The ALJ imposed statutory penalties upon the insurer for violation of W.C. Rule of Procedure 5-2(A), 7 Code Colo. Reg. 1101-3 at 12.2, which provides that within ten days of notice or knowledge an employer shall report any work-related injury, to the employer's insurer and any employer who does not provide the required notice may be subject to penalties. The ALJ found that the employer failed to make a timely report to the correct insurer within 10 days. The employer was required to file the report with the insurer on or before January 24, 2007 but made the report to the correct insurer only on January 29, 2007, five days late. The ALJ concluded that a penalty in the amount of ten dollars a day was appropriate. The ALJ ordered the insurer to pay a penalty in the amount of ten dollars per day for the period January 24, through January 28, 2007.
The claimant contends that the ALJ, in assessing penalties in the amount of ten dollars a day, failed to make sufficient findings to support the amount of the penalty award. Citing Associated Business Products v. Industrial Claims Appeals Office, 126 P.3d 323(Colo.App. 2005) the claimant argues that the ALJ made no findings as to the degree of reprehensibility of the respondents' misconduct, the disparity between the harm or potential harm suffered by the aggrieved party and the penalty, the difference between the penalty imposed and the amount of penalties imposed in comparable cases. The claimant contends the failure to identify the evidence that supported the determination of the amount of penalties mandates a remand. We are not persuaded that a remand is necessary.
The ALJ made the following findings of fact relevant to the penalty of ten dollars per day. On the morning of January 14, 2007, the claimant reported her injury to the front desk supervisor who then reported the injury to the general manager. On the same day the general manager prepared an employer's first report of injury and sent it to Chubb. The general manager was not aware that Chubb had ceased to be the workers' compensation insurer for the employer. The claimant sought medical care at Mercy Medical center where she was diagnosed with a cervical strain, left foot swelling, and left rib bruising. X-rays of the claimant's foot and chest were normal and the claimant was released to return to work with limitations. The only limitations were ice and rest. The claimant returned to work on January 16, at her usual occupation and usual wage. The claimant continued to work her regular job and did not miss more than three days of work due to the work injury. The claimant never requested from her employer that she be allowed time off work or for the provision of additional medical care. On January 29, 2007, the general manager received notification that Chubb was no longer the correct workers' compensation insurer and that the current insurer was Wausau. The general manager immediately completed an employer's first report of injury to Wausau, who received it on January 29, 2007. The ALJ found that the employer had no reasonable justification for the violation, which was not intentional. The claimant in her brief does not challenge these factual findings of the ALJ but states that for the purposes of the appeal she "defers" to the ALJ order.
We note that the insurer has not appealed the imposition of a penalty against it for the employer's failure to timely report the injury to the insurer. We further note that the insurer has also not challenged the ten dollar a day penalty as being excessive.
We consider the assessment of the statutory penalty under an abuse of discretion standard of review. Associated Business Products v. Industrial Claim Appeals Office, supra. Under this standard, we must determine whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason ." Rosenberg v. Board of Education of School Dist. # 1, 710 P.2d 1095, 1098-99 (Colo. 1985). Because the ALJ's authority is discretionary, we may not disturb his determination of the amount of the penalty to be imposed in the absence of fraud or an abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
As we read Associated Business Products, the court held that certain factors such as the reprehensibility of the conduct should be considered in reviewing whether a penalty is unconstitutionally excessive, or "grossly disproportionate." Associated Business Products, 126 P.3d at 326; See also Pueblo School District No. 70 v. Toth, 924 P.2d 1094, 1100 (Colo.App. 1996). However, subject to constitutional limitations, the ALJ's decision regarding the amount of the penalty remains highly discretionary, which implies that the ALJ may consider a wide variety of factors. Matthys v. City of Colorado Springs, W.C. No. 4-662-890 (April 02, 2007).
We disagree with the claimant that the ALJ's failure to discuss specifically each of the factors set forth in Associated Business Products requires a remand for further findings. We do not read Associated Business Products as setting forth a checklist of factors that must be expressly present in every order imposing a penalty under § 8-43-304(1), and the absence of which compel reversal of the order. See Adakai v. St. Mary Corwin Hospital, W. C. No. 4-619-954 (May 05, 2006).
Here the ALJ correctly noted the factors to be considered under Associated Business Products. The ALJ made extensive findings of fact involving the few days of delay in the employer's reporting the injury to the correct insurer. The ALJ found that the general manger made a prompt report of the injury on the day of the injury but by mistake sent the report to the employer's former insurer. The ALJ also specifically found that when the general manager became aware of the change in insurance carrier she immediately sent a report to the correct insurer. We note that the penalty was within the permissible statutory range and could under the statute have been less. Under these circumstances, we do not view the penalty of ten dollars per day for this violation to be an abuse of the ALJ's discretion. We are able to discern the basis for the order, and in our view, the ALJ did not abuse his discretion in setting the amount of the award.
The claimant next contends that the ALJ's decision to dismiss her claim for penalties under § 8-43-103(1) C.R.S. 2008, is not supported by substantial evidence. Section 8-43-103(1) requires the employer to give notice to the Division of Workers' Compensation within ten days after an injury for which compensation and benefits are payable. The ALJ found that the claimant did not suffer more than three days of lost time from work and she had not yet suffered any permanent disability. Therefore, the ALJ found that the claimant had failed to prove by a preponderance of the evidence that the respondents violated § 8-43-103(1) and consequently dismissed the penalty claim.
On appeal, the claimant essentially contends that the ALJ erred in crediting the testimony of the employer's general manager over the claimant's testimony. In our opinion, the general manger's testimony was not rebutted by such hard, certain evidence that we could say the hearing officer erred as a matter of law by believing it. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The general manager testified that the claimant informed her that she could work her next shift and never asked for time off. Tr. at 43. This testimony is supported by the initial report of "workability" from Mercy Medical Center, which released the claimant to return to work at her next scheduled shift with the only limitations noted of ice and rest. Exhibit 11 at 5.
The claimant argues the ALJ's finding that the claimant never requested from the general manager that she be allowed time off work or needed additional medical care is not supported by substantial evidence. The claimant argues that the ALJ erroneously failed to consider the impact of the claimant's situation of living at her place of employment. The claimant contends that this living arrangement made her fearful of losing her job if she insisted in taking time off work. However, we perceive nothing in this testimony that compels the ALJ to reach the conclusion urged by the claimant, and the ALJ is not required to mention or make findings concerning evidence he finds unpersuasive. See Tilley v. Industrial Claim Appeals Office, 924 P.2d 1173 (Colo.App. 1996). The claimant further argues that the ALJ failed to consider the fact that the claimant sought treatment for her injuries and that the testimony of the general manger was simply incredible. However, as noted, the ALJ's credibility determinations are binding except in extreme circumstances and we do not find those circumstances here. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
IT IS THEREFORE ORDERED that the respondents' petition to review is dismissed without prejudice and the ALJ's order issued June 30, 2008, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
TALEAH EVANS, DURANGO, CO, (Claimant).
QUALITY INN SUITES, Attn: PATTY REAVIS, C/O: HOSPITALITY LODGING SOUTH, DURANGO, CO, (Employer).
WAUSAU INSURANCE COMPANIES, Attn: KIMBERLY TRAVIS, IRVING, TX, (Insurer).
DAWES, HARRISS BLOODSWORTH. PC, Attn: ELLIOT L BLOODSWORTH, ESQ., DURANGO, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: JONATHAN S ROBBINS, ESQ., DENVER, CO, (For Respondents).
HOSPITALITY LODGING, Attn: LAURIE REINHARD, LEAGUE CITY, TX, (Other Party).