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Jiminez v. Industrial Claim Appeals Office of the State of Colorado9/11/2003
ORDER AFFIRMED
Ney, J., concurs Webb, J., specially concurs
Maxie Jiminez (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying his claim for penalties against employer, Amax Henderson Project, and its insurer, Pinnacol Assurance (collectively Pinnacol). We affirm.
In an underlying order in 2000, an administrative law judge (ALJ) found Pinnacol liable to claimant for additional temporary total disability (TTD) benefits beyond what it had previously paid. The ALJ also imposed penalties for late payment of TTD benefits.
Pinnacol filed a timely petition to review the order, alleging that the ALJ had erred "in awarding penalties for alleged late payment of TTD and in awarding additional TTD in the amount of $1,019.81." Pinnacol's brief in support of the petition included an argument that the ALJ had erred in assessing the penalties, but it did not contain any argument regarding the award of additional TTD benefits.
In an order entered in October 2001, the Panel affirmed the ALJ's order without specifically addressing the award of additional TTD benefits. Pinnacol did not pay the TTD benefits until November 2001.
In the meantime, claimant had filed an application for hearing seeking penalties for Pinnacol's asserted violation of the ALJ's 2000 order and a procedural rule. He alleged that Pinnacol filed a bad faith appeal on the issue of additional TTD benefits by failing to include an argument as to that issue in its brief in support of the petition to review.
The ALJ found that claimant failed to prove Pinnacol violated the 2000 order. Further, the ALJ found no violation of any statute or rule because the filing of briefs with the Panel is optional. Thus, the ALJ concluded that no penalty could be assessed where a party chooses not to file a brief in support of an issue designated in a petition to review. The ALJ also concluded that Pinnacol had not committed bad faith in pursuing the appeal. The Panel affirmed.
Claimant contends the Panel erred in affirming the ALJ's determination that Pinnacol brought the appeal in good faith even though it failed to argue in its brief an issue supposedly on appeal. He asserts that, as a matter of law, Pinnacol's appeal was not brought in good faith because its brief did not mention the benefits issue. He also argues that Pinnacol violated Dep't of Labor & Employment Rule VII(D)(2), 7 Code Colo. Regs. 1101-3, by failing to argue the benefits issue in its brief. Thus, he argues he is entitled to penalties. We disagree.
Section 8-43-304(1), C.R.S. 2002, authorizes the imposition of penalties if a party fails, refuses, or neglects to obey a lawful order. This statute encompasses an order issued by an ALJ. Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo. App. 2001). Likewise, the term "order" as used in this penalty provision includes a rule. Spracklin v. Indus. Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002).
We assume, arguendo, that a party may fail, refuse, or neglect to obey an ALJ's order by failing to make payment in accordance with the order while litigating an appeal to the Panel without any good faith basis for doing so. See § 8-43-301(14), C.R.S. 2002 (authorizing attorney fees and costs against party litigating appeal that is not well grounded in fact and law or is not a good faith argument for extension, modification, or reversal of existing law); Indus. Comm'n v. Cont'l Inv. Co., 85 Colo. 475, 277 P. 303 (1929).
For purposes of § 8-43-304(1), an insurer neglects to obey an order if it fails to take the action a reasonable insurer would take to comply with the ord
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