W.C. No. 4-174-578Industrial Claim Appeals Office.
May 8, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which imposed a penalty of $500 against Robert J. Ore (Ore). The claimant contends the ALJ erroneously refused to impose a greater penalty. We disagree and, therefore, affirm.
In 1993 the claimant sustained an admitted injury. A hearing was scheduled for October 23, 1997, on the issue of permanent total disability. At the hearing Ore gave false testimony concerning the results of a labor market survey. Relying on Ore’s testimony, the ALJ denied the claim for permanent total disability benefits.
In a Summary Order dated December 21, 1998, the ALJ reopened the claim on grounds Ore committed perjury. On January 22, 1999, Ore entered a guilty plea to one count of first degree perjury in district court. On June 4, 1999, the parties entered into a settlement for permanent and total disability, and the claimant subsequently requested an order imposing penalties against Ore.
In an order dated February 7, 2000, the ALJ found Ore gave perjured testimony on October 23, 1997, in violation of § 8-43-402 C.R.S. 2000. However, the ALJ rejected the claimant’s argument that the violation continued until the claimant was awarded permanent total disability benefits. Instead, the ALJ determined there was a single violation on October 23, 1997, and imposed a penalty of $500 under §8-43-304(1), C.R.S. 2000.
The claimant timely appealed the ALJ’s order. In his Brief in Opposition to the claimant’s petition to review, Ore contended the ALJ erroneously assessed penalties under § 8-43-304(1).
On September 6, 2000, we remanded the matter to the ALJ to determine whether Ore timely filed a petition to review the February 7 order. On remand the ALJ determined Ore did not file a petition to review. Therefore, the ALJ retransmitted the matter to us for consideration of the claimant’s petition to review.
Relying on our conclusions in Rogan v. UPS, W.C. No. 4-314-848
(March 2, 1999), the claimant contends the effect of the false testimony was not corrected until June 21, 1999, when the respondents agreed to pay permanent total disability benefits. The claimant also contends that but for the false testimony he “might” have been awarded permanent total disability in October 1997. Therefore, the claimant contends the ALJ should have imposed penalties for the period October 23, 1997, to June 21, 1999. We disagree.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Section § 8-43-402 provides that anyone who willfully makes a false statement material to a workers’ compensation claim “commits a class 5 felony which shall be punished as provided in § 18-1-105.” Section 8-43-304(1), authorizes the ALJ to impose a penalty of up to $500 per day against any person who violates a provision of the Workers’ Compensation Act (Act). Under § 8-43-305 C.R.S. 2000 “every day” the violator fails to comply with the Act “shall constitute a separate and distinct violation.”
Because Ore did not file a petition to review, we do not consider whether the ALJ erroneously found a violation of § 8-43-402, and that the violation is punishable under § 8- 43-304(1). Nevertheless, we perceive no basis to interfere with the ALJ’s determination that Ore committed a single violation and reject the claimant’s contention that the ALJ’s determination is contrary to our conclusions in Rogan v. UPS, supra.
In Rogan v. UPS, supra, the claimant requested penalties for the insurer’s violation of the Rules of Procedure, Part IV(N)(5), 7 Code Colo. Reg. 1101-3, which requires insurers to file an admission of liability or request a Division-sponsored independent medical examination (DIME) within twenty days of the receipt of the treating physician’s medical impairment rating. The insurer in Rogan did not file an admission of liability for permanent disability benefits until more than 100 days after receipt of the treating physician’s medical impairment rating. Because the requirements of Rule IV(N)(5) are not fulfilled until the insurer either files an admission of liability or requests a DIME, we concluded the insurer was subject to penalties up to $500 per day, for each day it failed timely to file an admission of liability for permanent disability benefits.
Here, unlike the circumstances in Rogan, the challenged conduct did not involve the failure to act. Rather, the ALJ found Ore violated § 8-43-402 by the action of giving false testimony. As a result, Ore was convicted of a single count of perjury.
The claimant’s arguments notwithstanding we are not persuaded there is any statutory duty to retract false testimony once given. Neither § 8-43-402 nor § 18-1-105 contain any requirement that a witness retract false testimony once given, and we may not read nonexistent provisions into the statute. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Similarly, the claimant’s reliance on § 18-8-508, C.R.S. 2000 as authority for such a duty is misplaced. That statute provides that a person shall not be convicted of perjury in the first degree if he retracts the false statement in the same proceeding in which it was made. However, § 18-8-508 does not require a witness to retract false testimony. It merely creates an affirmative defense to a charge of first degree perjury. Therefore, we conclude the ALJ’s finding of a single violation is not contrary to the applicable law.
Furthermore, in Rogan, the alleged harm was the absence of a timely notice of the insurer’s position on permanent disability. Here, the alleged harm was the denial of permanent total disability benefits. However, the claimant admits that even if Ore had retracted the false testimony, she was not guaranteed permanent total disability benefits. It follows, that the alleged harm could not be corrected by the violator as was the case in Rogan.
We also note that the claimant’s theory is inconsistent with her claim that the violation continued until June 1999. On January 22, 1999, Ore plead guilty to perjury. Consequently, insofar as the claimant contends the violation continued until Ore rectified the perjury, the violation ended long before June 1999.
II.
Section 8-43-304(1) affords the ALJ wide discretion to impose a penalty up to $500 for each offense. We may not disturb the ALJ’s exercise of discretion in the absence of an abuse. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reasons as where it is not supported by the evidence or the law. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998); Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993)
The ALJ imposed the maximum penalty provided by § 8-43-304(1). Therefore, we cannot say the ALJ abused his discretion in failing to assess a greater penalty. Industrial Claim Appeals Office v. Orth, supra; cf. Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 7, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 8, 2001 to the following parties:
Jamie J. Smith, 117 Iroquois, Florissant, CO 80816
A-Reliable Roofing Co., 3614 E. St. Vrain St., Colorado Springs, CO 80909-6623
Legal Department, Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail
Barbara Carter, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail
Robert J. Ore, c/o J. E. Losavio, Esq. and John K. Priddy, Esq., 616 W. Abriendo Ave., Pueblo, CO 81004
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
J. E. Losavio, Esq. and John K. Priddy, Esq., 616 W. Abriendo Ave., Pueblo, CO 81004 (For Respondent Ore)
BY: A. Pendroy