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Associated Business Products v. Industrial Claim Appeals Office of the State of Colorado11/3/2005
ORDER AFFIRMED
Taubman and Hawthorne, JJ., concur
In this workers' compensation case, Associated Business Products and its insurer, Liberty Mutual Group (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) upholding the imposition of a $24,900 penalty for employer's failure to pay $107.79 in bills incurred by Kevin McOmber (claimant). We affirm.
Claimant sustained an industrial injury in 1995 that included a traumatic brain injury and paralysis. As a result, claimant is permanently and totally disabled. Because of the severity of his disability and his confinement to a wheelchair, cell telephone service for emergency calls is medically necessary for claimant and therefore is provided by employer.
The administrative law judge (ALJ) found that claimant submitted requests for payment of the telephone charges to employer on October 2 and 23, 2002, and November 15, 2002, but that it neglected to pay those bills until January 28, 2003, which was outside the time limits mandated by the Director of the Division of Workers' Compensation. See Dep't of Labor & Employment Rule XVI(K), 7 Code Colo. Regs. 1101-3. Further, employer did not file a written notice contesting payment of the charges.
The ALJ also found that even though previous penalties had been imposed against employer, its conduct had continued to demonstrate a pattern of delay. Accordingly, the ALJ imposed a penalty under § 8-43-304(1), C.R.S. 2005, which authorizes the imposition of penalties on a daily basis for the failure to obey an order.
While recognizing that § 8-43-304(1) allowed a penalty of up to $500 per day, the ALJ concluded that "a penalty of $300 per day is sufficient to deter future violations." The aggregate penalty imposed for the eighty-three days of nonpayment was $24,900. The Panel affirmed.
I.
Employer first contends that the "penalty is unsupported by the record." We decline to address this argument.
In its brief in support of the petition for review filed with the Panel, employer also contended that the "penalty is unsupported by the record." However, employer specifically argued that there was no record support for the ALJ's finding that employer violated Rule XVI(K). The Panel concluded that this argument was waived.
Employer now restates the contention that the "penalty is unsupported by the record." However, the specific arguments raised before us are completely different. Employer now argues that the ALJ's findings regarding the amount of the penalty are inadequate and that there is no evidence of harm to claimant from its failure timely to pay the bills, or of sanctions in other cases involving comparable misconduct.
The argument regarding the adequacy of the findings was not raised before the Panel and therefore will not be considered on appeal. See City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997)(party must raise specific argument below to preserve it on appeal). We note that the arguments regarding harm to claimant and sanctions in other cases were raised before the Panel only in the context of employer's second contention that the penalty was unconstitutionally excessive. Accordingly, we will consider those arguments only in relation to employer's second contention. See City & County of Denver v. Indus. Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002)(specific issue sought to be argued on appeal must be encompassed in the broader issue addressed in the administrative proceeding).
II.
Asserting that a $24,900 penalty for nonpayment of bills totaling $107.79 is constitutionally excess
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