Opinion
W.C. No. 4-679-315.
September 25, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated April 8, 2008, that denied and dismissed the claimant's claim for statutory penalties under § 8-43-304, C.R.S. 2008. We affirm.
The order under review here was entered on a motion for summary judgment and therefore no hearing was held. The claimant filed an application for hearing endorsing as one issue penalties for the respondents' alleged failure to pay medical bills. The claimant then sought partial summary judgment on the penalty issue, contending that the respondents had no factual defense to their failure to pay certain bills within 30 days. The claimant therefore sought an order making the respondents liable for penalties under 38-43-304, C.R.S. 2008, with the amount of the penalties to be determined at the hearing. The ALJ entered an order granting in part and denying in part the claimant's motion for partial summary judgment. The ALJ found that certain facts were undisputed, including that the respondents admitted liability for the claimant's injury of September 2, 2005, and that they received medical bills for treatment received by the claimant between March 1, 2007 and March 14, 2007. The ALJ also found that the claimant's attorney demanded payment of the medical bills by letter dated November 8, 2007, and that the bills were paid on January 18, 2008. The ALJ also found that it was undisputed that the respondent insurer willfully delayed payment of the medical bills in violation of 38-43-401(2)(a), C.R.S. 2008.
The ALJ noted in his order that 38-43-401(2)(a), C.R.S. 2008 provides that if an insurer willfully delays payment of a medical benefit for more than 30 days, the insurer shall pay a penalty of eight percent of the amount of the wrongfully withheld benefits. The ALJ concluded that because 38-43-401(2)(a) provided for a penalty, no further penalty was available pursuant to 38-43-304. The ALJ therefore dismissed the claimant's penalty claim under 38-43-304.
The claimant appealed the ALJ's order and argues that the ALJ erred in construing 38-43-304 to preclude penalties up to $500 per day on the ground that a penalty of eight percent of the benefits withheld was available under 38-43-401(2)(a). Specifically, the claimant contends that she alleged not only a violation of 38-43-401(2)(a), but also a violation of Workers' Compensation Rules of Procedure 16(1)-(10). The respondents argue in opposition that the claimant has raised the violation of the rules of procedure for the first time on appeal and that, in any event, the respondents did not violate Rule 16. We generally agree with the respondents' argument.
Summary judgment is an available procedure regarding a penalty claim. The Office of Administrative Courts has promulgated a procedural rule authorizing summary judgment in workers' compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See AC. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). Pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is whether applicable law supports the ALJ's denial of summary judgment on the ground that the alleged violation could not be penalized under § 8-43-304(1). We conclude that it does.
We agree with the ALJ that Pena v. Industrial Claim Appeals Office, 117 P.3d 84 (Colo.App. 2004) is dispositive of this issue. In Pena the court of appeals held that the limiting clause in 38-43-304 applies to three of the four categories for which penalties may be imposed under that provision. Section 8-43-304 provides that penalties up to $500 per day may be assessed against "[a]ny employer or insurer, or any officer or agent of either, or any employee, or any other person who violates any provision of articles 40 to 47 or this title, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel." This provision therefore authorizes four categories of conduct for which penalties may be imposed. The court in Pena held that the limiting clause "for which no penalty has been specifically imposed" applies to the three categories that precede that clause. Thus, the limiting clause applies to the categories of penalties that may be imposed under § 8-43-304 for violations of any provision of the Act and for doing any act prohibited by the Act, as well as for failing or refusing to perform any duty lawfully mandated by the Director or the Panel. As we understand Pena, the court held that where some other penalty "has been specifically provided" no penalties are permissible under § 8-43-304 for violation of the Act, for doing something prohibited by the Act, or for failing or refusing to perform a duty lawfully mandated by the Director or the Panel.
It is true that in Pena the court also held that the claimant could pursue penalties under § 8-43-304 and was not restricted to the penalty set forth in 38-43-401(2)(a). However, Pena was not a case in which the claimant received treatment, the provider submitted a bill for that treatment, and the insurer delayed payment of the bill for more than thirty days. Rather, in that case the insurer refused to provide taxi vouchers to permit the claimant to travel safely to and from medical appointments. Hence, the insurer's conduct in Pena was the equivalent of unreasonably refusing to provide medical treatment. The court in Pena held that that conduct was not penalized by 38-43-401(2)(a), and that penalties were therefore available under the general penalty statute, § 8-43-304.
Here, unlike in Pena, we do not read the claimant's motion for partial summary judgment as alleging that the respondents' conduct delayed or denied the claimant medical treatment. Rather, the motion expressly alleges that there are no disputed facts concerning the respondents' violation of § 8-43-401(2)(a), in their having failed "to pay a bill within 30 days." The relief the claimant's motion expressly seeks is summary judgment "on the issue of Respondents' liability for penalties for failure to pay a bill within 30 days and violation of § 8-43-401(2)(a). . . ." In our view the motion does not seek summary judgment for penalties based on any other conduct. Therefore, the claim under § 8-43-304, as presented by the claimant's motion for partial summary judgment, was precluded by the limiting clause in that statute and by the fact that a penalty is available under § 8-43-401(2)(a).
Of course, the point of the ALJ's order, and of Pena as we read it, is that the respondents could not be penalized under § 8-43-304 for the violation of § 8-43-401(2)(a). As we read the claimant's motion she requested penalties under § 8-43-304 for that conduct violating § 8-43-401(2)(a). Moreover, although we note that the claimant at one point cited Rule of Procedure 16, the bare citation is unaccompanied by any argument or explanation setting forth the subsection of the rule allegedly violated or the way in which that alleged violation occurred. We agree with the respondents in this regard that a violation of the rule was not asserted in the motion.
Contrary to the claimant's argument, we do not view either Giddings v. Industrial Claim Appeals Office, 39 P.3d 1211 (Colo.App. 2001) or Fera v. Industrial Claim Appeals Office, 169 P.3d 231 (Colo.App. 2007) as dictating a different result. In Giddings the court held that the specific penalty provision in 38-43-401(2)(a) did not preclude the imposition of penalties under the general provision in 38-43-304(1). However, in that case the conduct complained of was the respondents' violation of an order to pay medical benefits. Similarly, in Fera the conduct sought to be penalized was the insurer's unreasonable delay in or denial of prior authorization for particular medical treatment. Such conduct is not subject to penalties under § 8-43-401(2)(a). Therefore, the limiting clause of § 8-43-304 did not preclude penalties under that latter statute. As noted, unlike in Fera and Giddings, here the conduct complained of was the late payment of medical bills, which is properly penalized under § 8-43-401(2)(a) and the limiting clause of § 8-43-304 makes that statute inapplicable.
Finally, in our view it is important to note that the scope of the ALJ's order in this case is narrow. As we understand this dispute, the sole issue resolved by the ALJ's order was whether partial summary judgment should have been granted on the liability portion of the penalty claim under § 8-43-304. As noted, that penalty claim was premised solely upon the respondents' alleged violation of § 8-43-401(2)(a). In this regard, the conduct
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alleged was solely the respondents' late payment of medical bills. Because the claimant was the moving party, it was appropriate to deny summary judgment on the penalty claim under § 8-43-304 based on the late payment of medical bills. Further, because the ALJ correctly resolved the issue as a matter of law, it was appropriate in the context of summary judgment to dismiss the claim under § 8-43-304 for the late payment of medical bills. However, as we understand the order and the procedural posture of this matter, that was the only claim dismissed as a matter of law. We express no opinion concerning whether the claimant may bring further penalty claims based upon other conduct such as the alleged denial of medical treatment, conduct allegedly causing a delay in medical treatment, conduct allegedly violating a rule of procedure, or any other penalty claim other than the narrow one disposed of by the ALJ's order. Similarly, we express no opinion concerning whether the claimant's present penalty claim encompasses such other grounds for the penalty. As noted, the ALJ only addressed the question whether the late payment of medical bills could be penalized under § 8-43-304. He correctly ruled that it could not.
IT IS THEREFORE ORDERED that the ALJ's order dated April 8, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
MARTA BARBIERI, 1248 GUMWOOD DRIVE, COLORADO SPRINGS, CO, 80906 (Claimant).
HELZBERGS DIAMOND SHOPS, INC., Attn: LORI CARPENTER, 1825 SWIFT, KANSAS CITY, MO, 64116 (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MALCOLM CHANDLER, ENGLEWOOD, CO, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).