Opinion
W.C. No. 3-545-974
August 10, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied him interest on his claim for permanent partial disability benefits. We affirm.
This case has a complex procedural history. We will summarize the history to the extent it is relevant to the issues here.
The claimant sustained industrial injuries in 1977 and 1986. This claim concerns the claimant's 1977 back injury.
In February 1991, the parties stipulated that the claimant is permanently and totally disabled as a result of the combination of the 1977 and 1986 injuries. However, the parties could not agree as to whether the claimant was entitled to permanent partial disability benefits as a result of the 1977 injury. Consequently, this issue proceeded to hearing on March 20, 1991.
Following the March 1991 hearing, the ALJ entered an order dated May 13, 1991. This order determined that the claimant reached maximum medical improvement from the 1977 injury in September 1980, and that the claimant was entitled to permanent partial disability benefits for "110.24 weeks" at the rate of $84 per week. The ALJ also awarded interest at the rate of eight percent per annum.
Following the May 1991 order, the respondents filed a petition to review and a "Motion for Relief From Interest." The motion stated that, between 1980 and 1984, the claimant's physicians would not place him at maximum medical improvement, nor issue a permanent disability rating, despite the respondents' requests. The motion also noted that the claimant sustained the intervening industrial injury in 1986, filed an application for hearing on permanent total disability benefits in January 1990, but did not seek to add the issue of permanent partial disability for the 1977 injury until January 1991.
In an order dated June 19, 1991, the ALJ considered the Motion for Relief From Interest. He concluded that the respondents were "not at fault for the delay in the claimant receiving his benefits," and that they demonstrated "good cause" for relief from interest prior to May 13, 1991. The claimant filed a timely petition to review the June 1991 order.
On September 15, 1992, the ALJ issued a Supplemental Order concerning his May 1991 order. The supplemental order again awarded permanent partial disability benefits for the 1977 injury. However, the order made no reference to the issue of interest.
On September 24, 1992, the claimant filed a brief in support of his petition to review the June 1991 order. On October 7, 1992, the respondents petitioned to review the Supplemental Order.
Eventually, in an order dated January 11, 1993, we affirmed the ALJ's Supplemental Order. We also concluded that the interest issue was not properly before us because a briefing schedule had not been established, and the ALJ had not transmitted the June 1991 order for review.
Ultimately, on February 7, 1995, the ALJ issued another order denying interest. This order was not substantively different than the June 1991 order. Again, the claimant filed a petition to review.
I.
The respondents assert that we lack jurisdiction to consider the issue of interest. In essence, the respondents argue that we lost jurisdiction because the claimant failed to appeal the September 1992 Supplemental Order, and because the June 1991 order became final "by operation of law." We disagree with these arguments.
In our view, the June 1991 order amounts to a premature supplemental order because it was issued prior to completion of the briefing schedule governing the May 1991 order. See § 8-43-301(4), C.R.S. (1994 Cum. Supp.). In any event, the claimant filed a timely petition to review the June 1991 order, and thus, preserved his rights to appellate review. We do not believe the claimant was required to file a second petition to review after the ALJ issued the Supplemental Order in September 1992, especially because the Supplemental Order did not address the issue of interest, or respond to the claimant's arguments concerning this issue. See Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988).
Further, the ALJ's failure to transmit the June 1991 order to us by August 30, 1993, does not deprive us of jurisdiction. Rather, our jurisdiction to review the order became automatic once the briefing schedule was complete, and thirty days elapsed. See Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989) . The claimant was not under any obligation to "request transmittal of the matter" since that was an obligation of the ALJ.
It follows that we consider our review to be of the ALJ's June 1991 order. The 1995 order was merely superfluous, and repeated the ALJ's prior findings concerning the interest issue.
II.
The claimant argues that the ALJ's denial of interest is contrary to law. In essence, the claimant argues that denial of interest was an abuse of discretion because the delay in adjudicating permanent disability for the 1977 injury case was no more his "fault" than the respondents'. The claimant also argues that the respondents had use of his money during the disputed period of time, and that he was "not given a hearing on the motion." We reject these arguments.
Initially, we find no error in the ALJ's failure to grant a hearing in this case. So far as we can ascertain, the claimant is not disputing any material issue of fact involving the procedural history of this case. Rather, the claimant is arguing that the ALJ's conclusion regarding interest was legally incorrect. Therefore, we do not believe an evidentiary hearing was necessary. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (hearing necessary where administrative adjudication turns on contested questions of fact). Moreover, the claimant does not indicate what evidence he wishes to present which could make a substantive difference in the outcome of this case.
Further, we perceive no substantive error in the ALJ's order. The statute, currently codified as § 8-43-410(2), C.R.S. (1994 Cum. Supp.), provides as follows:
"Upon application and satisfactory showing to the director or administrative law judge of the valid reasons therefor, said director or administrative law judge, upon such terms or conditions as the director or administrative law judge may determine, may relieve such employer or insurer from the payment of interest after the date of the order therefore; and proof that payment of the amount fixed has been offered or tendered to the person designated by the award shall be such sufficient valid reason."
This statute gives the ALJ wide discretion to determine the circumstances under which it is appropriate to grant relief from interest. See Harrison Western Corp. v. Claimants, 185 Colo. 142, 522 P.2d 722 (1974); Beatrice Foods Co., Inc. v. Padilla, 747 P.2d 685 (Colo.App. 1987). Generally, an abuse of discretion is shown only if an order exceeds the bounds of reason, as where it is contrary to the law or the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the ALJ was satisfied that between 1980 and 1984 the respondents made regular efforts to determine whether the claimant was at maximum medical improvement and entitled to permanent disability benefits. However, the respondents were thwarted by claimant's treating physicians, as well as the eventual occurrence of the 1986 injury. Further, the ALJ could, and apparently did, infer that the failure to seek an earlier adjudication of permanent partial disability was no more the respondents' fault than the claimant's fault. Under these circumstances, we cannot say the ALJ's order is beyond the bounds of reason and constitutes an abuse of discretion. Therefore, it must be affirmed.
IT IS THEREFORE ORDERED that the ALJ's order dated June 19, 1991, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed August 10, 1995 to the following parties:
Robert Metcalfe, 4155 W. Iliff Ave., Denver, CO 80219
Bruning Division of A.M. International, % Liberty Mutual Ins. Co., David Fairchild, P.O. Box 3539, Englewood, CO 80155-3539
Liberty Mutual Ins. Co., David Fairchild, P.O. Box 3539, Englewood, CO 80155-3539
Scott Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209
(For the Respondents)
John Evangelisti, Esq., 1120 Lincoln St., Ste. 711, Denver, CO 80203
(For the Claimant)
By: ______________________