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Campbell v. IBM Corp.6/17/1993
In this workers' compensation case, Cathy M. Campbell (claimant) contests a final order of the Industrial Claim Appeals Panel denying imposition of a notice penalty against the employer, IBM Corporation, and its insurance carrier, Liberty Mutual Insurance Co. (Liberty Mutual). Claimant also contests the determination of her average weekly wage and the Conclusion that she suffered an accidental injury rather than an occupational disease. We affirm in part, set aside in part, and remand.
Claimant worked as a chemical processor for IBM when she was first injured in February 1979. However, she continued to work and her condition progressively deteriorated for more than ten years until she ceased work in November 1989. The nature of claimant's injury and the lengthy interval between her initial injury and her eventual disability present complex issues for resolution.
Although IBM had workers' compensation insurance through Liberty Mutual, IBM also provided a wage continuation plan for its employees who were injured on the job. Under the plan, IBM paid its injured employees their full salary for all periods of work-related temporary disability. IBM then sought reimbursement from its carrier for the amount that would have been payable to the employee under the Workers' Compensation Act. IBM employees thus received full salary for all periods of work-related disability, and IBM, depending on the type of benefits payable, generally received reimbursement amounting to sixty-six and two-thirds percent of the employee's average weekly wage. Wage continuation plans, such as the IBM plan, are specifically authorized under the provision of the Workers' Compensation Act now codified as § 8-42-124, C.R.S. (1992 Cum. Supp.).
Similarly, IBM paid for its employees' work-related medical expenses and then sought reimbursement for the expenses from Liberty Mutual.
The claimant sought a penalty against both IBM and Liberty Mutual, commencing October 12, 1979, for failure timely to admit or deny liability. The penalty claim against IBM was dismissed as a matter of law in an administrative ruling that was affirmed by the Panel in August 1990.
Thereafter, following a hearing, the ALJ imposed a penalty against Liberty Mutual; however, the ALJ calculated the inception date of the penalty from April 17, 1989. He also concluded that claimant's injury was accidental and that disability benefits should be calculated based on claimant's weekly earnings in 1979, rather than her increased earnings during subsequent periods of disability. The issue of permanent disability was reserved for later determination. On review, the Panel affirmed the ALJ's order.
I.
Claimant first challenges the validity of the Panel's August 1990 order refusing to impose a penalty against IBM. We agree that such order is void since it was signed by only two of the three Panel members required to act at that time. O'Gorman v. Industrial Claim Appeals Office, 839 P.2d 1149 (Colo. 1992). The August 1990 order must therefore be set aside and the cause remanded for further proceedings on the issues addressed by that order.
II.
We next consider whether a notice penalty should be imposed against Liberty Mutual Fire Insurance Company prior to April 17, 1989. We conclude that the ALJ's ruling is binding on review.
A. Supplemental Notice of Injury
Under the applicable statute, Colo. Sess. Laws 1975, ch. 71, § 8-53-102, at 306, the duty to admit or deny liability arises only if an employee is disabled for more than "three calendar days," or if the employer or its insurer has notice or knowledge
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