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Holliday v. Industrial Claim Appeals Office8/19/1999
Review of Order from the Industrial Claim Appeals Office of the State of Colorado
ORDER AFFIRMED
Division III
Ney and Casebolt, JJ., concur
In this workers' compensation proceeding, Sondra A. Holliday (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the denial and dismissal of her application for hearing on a claim for penalties pursuant to §8-43-304, C.R.S. 1998. We affirm.
Claimant sustained a compensable injury in 1994 while working for Bestop, Inc. Prior to hearing on the issues of maximum medical improvement (MMI) and permanent impairment, claimant, Bestop, Inc., and its insurer, Colorado Compensation Insurance Authority, (collectively employer) participated in a pre-trial/settlement conference before a Prehearing Administrative Law Judge (PALJ). The PALJ's conference summary sheet notes that employer had offered an evaluation and treatment with a particular physician.
The physician evaluated claimant and, finding that her chronic headaches were related to the industrial injury, recommended additional treatment. Employer refused to authorize the additional treatment, contending that its agreement extended only to the evaluation.
Following an evidentiary hearing on the various issues related to compensation, the Administrative Law Judge (ALJ) found that employer clearly authorized treatment by the physician and, as part of his order, directed that employer pay for such treatment.
Claimant then initiated this proceeding seeking penalties under the general penalty provision of §8-43-304(1), C.R.S. 1998, for employer's failure to provide the recommended treatment in violation of the agreement reached in the pre-trial/settlement conference before the PALJ. A different ALJ presided and determined that the "gravamen" of claimant's request for penalties concerned "medical benefits" and was, therefore, governed by the more specific penalty provision set forth in §8-43-401(2)(a), C.R.S. 1998. Consequently, the ALJ dismissed the claim for penalties.
The Panel, in its review of the ALJ's order, upheld the determination that the applicable penalty provision was §8-43-401(2)(a) and, accordingly, affirmed the dismissal of claimant's request for penalties under §8-43-304(1).
In this appeal, claimant argues that the ALJ erred in determining that §8-43-401(2)(a) governs her claim for penalties. We disagree.
Section 8-43-304(1) provides for the imposition of a penalty of up to $500 per day upon any party who:
"Violates any provision of articles 40–47 of this title, or does any act prohibited thereby, 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. . ."
Section 8-43-401(2), C.R.S. 1998, provides in pertinent part, that:
"(a) 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. . . ."
All moneys collected as penalties by the division pursuant to this subsection (2) shall be transmitted to the state treasurer who shall
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