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Giddings v. Industrial Claim Appeals Office of the State of Colorado9/13/2001
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Division I
Davidson and Sternberg, JJ., concur
In this workers' compensation case, Linda Giddings (claimant) appeals the final order of the Industrial Claim Appeals Office (Panel) imposing penalties under § 8-43-401(2)(a), C.R.S. 2001, and denying penalties under § 8-43-304(1), C.R.S. 2001, for the failure of the employer, Northern Telecom, and its insurer, Liberty Mutual Insurance Company (collectively insurer), to pay medical benefits. We set aside the order and remand for reconsideration of the penalty issue under either statute.
Claimant sustained work-related injuries in 1996. In a 1999 final order that was not appealed, the Administrative Law Judge (ALJ) ordered insurer to pay for surgery and psychiatric treatment recommended by the treating physicians.
In a 2000 order, the ALJ found that insurer willfully and wantonly failed to comply with the 1999 order for the payment of medical and psychiatric expenses. The ALJ also found that as a result of insurer's failure to pay the psychiatrist's bill, the psychiatrist refused to provide claimant further care. The ALJ inferred that if the bill had been paid, "claimant probably would have had additional psychiatric consultation or treatment." As to the prescribed in-home care that claimant requested, the ALJ found that insurer had denied the request.
The ALJ determined that the applicable penalty provision was the more specific provision in § 8-43-401(2)(a), rather than the general provision in § 8-43-304(1). Therefore, the insurer was ordered to pay a penalty of eight percent of the unpaid medical expenses, as provided in the specific penalty provision. The Panel affirmed.
I.
Claimant contends that the specific penalty provision in § 8-43-401(2)(a) does not exclude imposition of penalties under the general penalty provision in § 8-43-304(1). We agree.
A.
The general penalty provision in § 8-43-304(1) provides:
Any employer or insurer, or any officer or agent of either, or any employee, or any other person who violates any provision of articles 40 to 47 of this title, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel or any judgment or decree made by any court as provided by said articles shall be subject to such order being reduced to judgment by a court of competent jurisdiction and shall also be punished by a fine of not more than five hundred dollars per day for each such offense, seventy-five percent payable to the aggrieved party and twenty-five percent to the subsequent injury fund created in section 8-46-101. (emphasis added)
The more specific penalty provision in § 8-43-401(2)(a) provides, as relevant here:
After all appeals have been exhausted or in cases where there have been no appeals, all insurers and self-insured employers shall pay benefits within thirty days of when any benefits are due. If any insurer or self-insured employer willfully delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld benefits. (emphasis added)
Here, both the ALJ and the Panel relied on Holliday v. Industrial Claim Appeals Office, 997 P.2d 1212 (Colo. App. 1999) (Holliday I), in imposing penalties under § 8-43-401(2)(a), which specifically menti
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