Opinion
W.C. No. 4-721-564.
August 20, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated February 27, 2009, that imposed a penalty on the insurer of $250 for a single day's violation of the Act. We affirm.
The claimant suffered an industrial injury on April 11, 2007. On November 19, 2007, the insurer filed a Final Admission of Liability (FAL). The FAL did not state a date of maximum medical improvement (MMI) and apparently was not predicated on a medical report from an authorized treating physician (ATP). No medical report was attached to the FAL. The claimant asserted two separate penalties, one for violation of § 8-42-107(8)(b)(I) C.R.S. 2009 and another for violation of Workers' Compensation Rule of Procedure 5-5(A), 7 Code Colo. Reg. 1101-3 (2009). The ALJ found that no provision of § 8-42-107(8)(b)(I) prohibited the insurer's conduct in filing the FAL or mandated that the FAL be filed in any particular fashion. The ALJ also found that the insurer violated Rule 5-5(A). However, the ALJ determined the respondents' violation of Rule 5-5(A) was not of a continuing nature and awarded one day's penalty of $250.
I.
The claimant first contends that the ALJ erred in concluding that the respondents' actions did not violate any statutory provision of the Workers' Compensation Act (Act). The claimant contends that § 8-42-107(8)(b)(I) requires that the claimant be placed at MMI by an ATP before the respondents are free to file a FAL. The claimant argues that since the respondents failed to obtain the necessary finding of MMI by an ATP the decision to file the FAL violated § 8-42-107(8)(b)(I) and a penalty pursuant to § 8-43-304(1) is required. The claimant argues that the respondents chose to file an FAL that they knew could not be predicated on a medical report determining MMI, since they knew that no such report existed.
Here the ALJ was not persuaded that the insurer's FAL violated § 8-42-107(8)(b)(I). The ALJ determined that § 8-42-107(8)(b)(I) applies to situations where either party disputes a determination by an authorized physician on the question of whether the injured worker has reached MMI. The ALJ noted that it was undisputed that a determination of MMI had not been made by an authorized physician at the time the insurer filed it FAL. However, the ALJ concluded that the provisions of § 8-42-107(8)(b)(I) do not pertain to the filing of a FAL and therefore could not supply the necessary basis for a claim for penalties as sought by the claimant. We are not persuaded that the ALJ erred in this conclusion.
Section 8-42-107(8)(b)(I) C.R.S. 2009 provides that:
An authorized treating physician shall make a determination as to when the injured employee reaches maximum medical improvement as defined in section 8-40-201(11.5).
Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings, and phrases should be read in context and construed according to the rules of grammar and common usage. Section 2-4-101, C.R.S. 2009; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). However, statutory language should not be construed in a manner which produces an absurd result. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).
We agree with the ALJ that the plain and ordinary meaning of § 8-42-107(8)(b)(I) deals with the determination by an authorized physician of whether the injured worker has reached MMI not what needs to be included in an admission. Section 8-42-107 is generally directed to the determination of permanent partial disability benefits and necessarily includes issues such as MMI. This is in contrast to § 8-43-203 which deals with notice concerning liability and specifically concerns the requirements of admissions of liability for final payment of compensation. We note that the ALJ was not called upon to rule on whether the respondents had violated § 8-43-203(2)(b)(II) C.R.S. 2009 (when the final admission is predicated upon medical reports, such reports shall accompany the final admission). See § 8-43-304(4), C.R.S. (applicant for penalties must "state with specificity" the grounds on which a penalty is sought); Stilwell v. B B Excavating Inc., W.C. No. 4-337-321 (July 28, 1999). Therefore, we are not persuaded to interfere with the ALJ's order.
II.
The claimant next contends that the ALJ erred in only awarding a penalty for one day for the respondents' violation of Rule 5-5(A). Rule 5-5(A) provides that when the final admission is predicated upon medical reports, such reports shall accompany the admission along with the worksheets or other evaluation information. In addition, Rule 5-5(A) provides that admissions shall state the insurer's position on the provision of medical benefits after MMI.
Here, the ALJ found that Rule 5-5 mandates that an insurer filing a FAL state in the admission its position on the provision of medical benefits after MMI. The ALJ found that the FAL here failed to state a position on medical benefits after MMI and the insurer's filing of the FAL lacked an objectively reasonable basis. Therefore, the ALJ found that the insurer had violated Rule 5-5 and imposed a penalty against the insurer. However, the ALJ found that the insurer's violation of Rule 5-5 was not of a continuing nature. The ALJ determined that the duty of the insurer to state its position in the FAL on medical benefits after MMI existed only on the occasion of the filing of the FAL and not on a continuing basis. The ALJ found that the insurer only violated the provision of Rule 5-5 on one occasion, the date of the filing of the FAL. The ALJ concluded that the provisions of § 8-43-305 do not apply to support the imposition of a penalty for more than one day's violation of Rule 5-5. We perceive no reversible error in the ALJ's order.
We have previously upheld orders imposing penalties for a one-day violation and rejected the contention that a penalty for daily violations as provided in § 8-43-305 must be imposed. See Quintana v. Sunstrand, W.C. No. 3-062-456 (March 20, 2007) (the day the incorrect admission was filed only resulted in one violation and there was no continuing violation); Porras v. World Service Co. Inc., W. C. No. 4-155-161 (October 12, 1995) (ALJ properly restricted penalty against insurer to single day for direct contact with Division-sponsored independent medical examination physician); Smith v. Reliable Roofing Co. W. C. No. 4-174-578 (May 8, 2001) (ALJ imposed penalty under § 8-43-304(1) for perjured testimony for single day and rejected claimant's argument of continuing violation). See also Kennedy v. Industrial Claim Appeals, 100 P.3d 949, (Colo. App. 2004) (ALJ's order affirmed imposing a one-day penalty of $500 based on the claimant's failure to attend the DIME as required by PALJ's order).
Section 8-43-304(1) affords the ALJ wide discretion to impose a penalty up to $500 for each offense. In our view, whether to penalize a violation of the Act or a regulation as a continuing violation or as a single violation comes within the discretion afforded the ALJ in the application of § 8-43-305, C.R.S. 2009. We recognize that the statute provides that every day during which a person fails to comply with a lawful order or fails to perform a duty imposed by the Act "shall constitute a separate and distinct violation thereof." Section 8-43-305, C.R.S. 2009 (emphasis added). However, the ALJ may exercise his discretion in determining whether the respondents here "fail[ed] to comply" with the regulation on the single day on which it was filed or during each successive day when it was not withdrawn. Here it is evident from the ALJ's order that he considered the violation to be one that occurred only on a single day.
We may not disturb the ALJ's exercise of discretion in the absence of an abuse. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo. App. 1996). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reasons as where it is not supported by the evidence or the law. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998); Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We cannot say the ALJ abused his discretion in failing to assess a greater penalty. Industrial Claim Appeals Office v. Orth, supra; cf Williamson v. School District No. 2, 695 P.2d 1173 (Colo. App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error). Under these circumstances, we are unpersuaded to disturb the ALJ's order imposing a penalty for a single day's violation.
IT IS THEREFORE ORDERED that the ALJ's order dated February 27, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
HOLLY F. HEUPEL, 1395 TARI DRIVE, COLORADO SPRINGS, CO, (Claimant).
ACADEMY SCHOOL DISTRICT, Attn: JEAN HOUSTON, COLORADO SPRINGS, CO, (Employer).
LIBERTY MUTUAL INSURANCE, Attn: TERESA MARSHARDT, ENGLEWOOD, CO, (Insurer).
STEVEN U MULLENS, PC, Attn: RICHARD LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: APRIL D. MOORE, ESQ., DENVER, CO, (For Respondents).