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Moland v. Industrial Claim Appeals Office of the State of Colorado9/23/2004
MOTION DENIED, ORDERS SET ASIDE, AND CASE REMANDED WITH DIRECTIONS
Taubman and Dailey, JJ., concur
In these consolidated appeals, claimant, Brent Moland, and employer, Roadway Package System, Inc., seek review of final orders of the Industrial Claim Appeals Office (Panel) assessing penalties against employer for failure to pay a medical bill and concluding that a settlement agreement between the parties was ambiguous as to the waiver of post-settlement agreement penalties. We deny claimant's motion to dismiss, set the orders aside, and remand for further proceedings.
Claimant was injured during the scope and course of employment in 1994 and 1995. At issue in this review is employer's failure to pay a $191.25 bill incurred in 1999 for a physician at the Colorado Imaging Center.
In April 2000, claimant applied for a hearing, seeking payment of the bill and penalties for nonpayment. The hearing was vacated based upon the parties' agreement and entry of a stipulated order for payment of outstanding bills. The parties, through counsel, reached a full and final settlement agreement of the workers' compensation claim on January 23, 2001.
However, employer neglected to pay the Colorado Imaging Center bill after the settlement agreement was reached. Claimant then requested a hearing at which he sought payment of the bill and penalties for late payment. The administrative law judge, ALJ Harr, denied all penalty claims. The Panel reversed and remanded for further findings, specifically directing the ALJ to reconsider the question of whether employer should be penalized for nonpayment of the bill and whether good cause existed for employer's untimely assertion of the settlement agreement as a bar to the request for penalties. On remand, ALJ Harr ruled that employer had good cause for the delay in raising the affirmative defense and that the settlement agreement barred any penalties for nonpayment prior to its execution. ALJ Harr assessed penalties of $20 per day for nonpayment for the period May 17, 2001 through February 5, 2002.
Employer and claimant sought review of ALJ Harr's order. Claimant argued that ALJ Harr erred in finding good cause for the delay and failed to make findings regarding penalties for the substantial delay in payment after the settlement agreement. The Panel perceived no abuse of discretion in the good cause ruling, but found that the agreement was ambiguous concerning whether penalties had been waived for nonpayment of the bill after the date of the settlement agreement's execution. Once again the Panel remanded for a determination of whether penalties were due for nonpayment of the bill after January 23, 2001.
On remand, ALJ Jones adopted the Panel's conclusion that the ambiguous contract should be construed against employer as the drafter and determined that the agreement did not clearly bar the assessment of penalties for nonpayment that continued for a substantial period after execution of the settlement agreement. Finding no just cause for the substantial delay in paying the $191.25 bill, ALJ Jones levied penalties at the rate of $200 a day for one period and $500 a day for another period. The penalties totaled $90,800.
I.
Claimant has asserted that payment of twenty-five percent of the penalties to the Subsequent Injury Fund (SIF) under ยง 8-43-304(1), C.R.S. 2003, is an unconstitutional taking of his property. However, shortly before oral arguments, he moved to dismiss without prejudice this portion of the consolidated appeals. Claimant argues, without particularity, that a full factual record is necessary for resolution of the constitutional issue. However, the SIF and the Pa
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