Opinion
W.C. No. 4-410-364
September 13, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Vigil (ALJ) which imposed penalties under § 8-43-304(1), C.R.S. 2000, for their failure to comply with the Rules of Procedure, Part IX(C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34 (unilateral termination of temporary total disability benefits). We affirm.
On January 18, 1999, the claimant suffered a work-related injury. The respondents filed a General Admission of Liability for temporary total disability benefits commencing February 11, 1999.
Under Rule IX(C)(1)(d) an insurer may terminate temporary disability benefits without a hearing by filing an admission of liability form together with:
"a certified letter to the claimant or copy of a written offer delivered to the claimant with a signed certificate of service, containing both an offer of modified employment, setting forth duties, wages, and hours and a statement from an authorized treating physician that the employment offered is within the claimant's physical restrictions" (Emphasis added).
Section 8-43-304(1), authorizes the ALJ to impose penalties of up to $500 per day where the insurer fails or refuses to carry out a duty imposed by the Director of the Division of Workers' Compensation. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). Consequently, the courts have also held an insurer may be penalized for the violation of a Rule of Procedure if the violation is objectively unreasonable. Human Resource Company v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999) ; Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997). The reasonableness of the insurer's actions depends on whether the challenged conduct was predicated on a rational argument based on law or fact. Diversified Veterans Corporate Center v. Hewuse, supra.
The ALJ found that on April 29, 1999, and again May 5, 1999, the respondent-employer sent the claimant a written offer of modified employment. However, the ALJ found the claimant never received the letters because they were sent to the wrong address. Consequently, the claimant did not begin the modified employment. The respondents subsequently filed an admission of liability terminating temporary total disability benefits effective May 10, 1999. The claimant ultimately returned to modified work on May 25, 1999.
The ALJ determined the written offers of modified employment were ineffective to terminate temporary disability benefits because the respondent-employer failed to attach the treating physicians's statement approving the job duties, and because there was no evidence the offers were delivered to the claimant by certified mail. Consequently, the ALJ determined the respondents wrongfully terminated temporary disability benefits in violation of Rule IX(C)(1)(d), and imposed penalties at the rate of $200 per day for 15 days from May 10, 1999 through May 24, 1999.
The respondents timely appealed the ALJ's penalty order. The respondents' petition to review contains general allegations of error. See § 8-43-301(8), C.R.S. 2000. The respondents also contend the ALJ applied an incorrect legal standard in assessing penalties for the wrongful termination of temporary disability benefits. However, the respondents have not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
We have reviewed the record and the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved the pertinent evidentiary conflicts against the respondents based upon his decision to credit the claimant's testimony that he did not receive a written offer of employment. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ's findings of fact are amply supported by the record and the findings support the conclusion that the respondents unilaterally terminated temporary disability benefits in violation of Rule IX(C)(1)(d). Cf. Martinez v. Flying J. Inc., W.C. No. 4-374-856 (June 22, 2000); Jyrkinen v. Peakload, Inc., W.C. No. 4-139-096 (June 15, 1994).
Moreover, the ALJ's order reflects his application of the correct legal standard. The ALJ found the respondents knew the claimant's correct address, and insofar as they had conflicting information about the claimant's home address, they failed to investigate the discrepancy. (Conclusions of Law 33). The ALJ also found the respondents knew at the time they terminated temporary disability benefits that they possessed no signed receipt for certified mail or other documentation showing the claimant received the written offer. Finally, the ALJ found the respondents knew they failed to attach a statement of the treating physician approving the duties offered to the claimant. Under these circumstances, the ALJ implicitly determined the respondents unilateral termination of benefits was not predicated on a rational argument in fact or law. ( See Conclusions of Law 36, 38).
IT IS THEREFORE ORDERED that the ALJ's order dated January 10, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 13, 2000 to the following parties:
Timothy R. Patrick, 1423 Van Buren St., Pueblo, CO 81004-3040
Industrial Constructors/Managers, Inc., 409 N. Main St., Pueblo, CO 81003-3162
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Steven R. Waldmann, Esq., 303 S. Circle Drive, Suite 203, Colorado Springs, CO 80910-3026 (For Claimant)
Michele Stark Carey, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
BY: A. Pendroy