W.C. No. 4-145-608Industrial Claim Appeals Office.
May 14, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) dated May 18, 1995, which denied the claimant’s motion for the imposition of penalties due to the respondent’s failure to pay a medical bill. We affirm.
Insofar as pertinent, the record reveals that the claimant’s treating physician referred the claimant to Dr. Kenny-Hughes (Hughes) for evaluation of the claimant’s neuromuscular disorder. Dr. Hughes recommended certain testing including one for HIV, which was subsequently performed.
The respondent received the medical bill for the HIV test on December 13, 1993. By correspondence dated December 22, 1993, the adjuster denied payment of the bill.
The ALJ found that the respondent’s December 22 correspondence complied with the Rules of Procedure XVI(K)(6), Code Colo. Reg. 1101-3 at 80 (1995) [formerly Rule XIV(E) at p. 60 (1992)], concerning the written notification required for contested medical expenses. Based upon Dr. Hughes testimony and reports, the ALJ also found that the respondent’s failure to pay for the HIV test was based upon a legitimate controversy concerning the compensable nature of the test. Specifically, the ALJ found that the respondent’s counsel wrote to Dr. Hughes on December 22, 1993, and asked whether the HIV test was related to the claimant’s industrial injury. In a letter dated January 10, 1994, Dr. Hughes reported that the HIV test was not related to the industrial injury. The ALJ was further persuaded by the evidence that the claimant’s counsel made a similar inquiry to Dr. Hughes in March 1995, and again Dr. Hughes reported that the HIV test was not “work-related.” In addition, Dr. Hughes testified that the claimant’s neuromuscular disorder was not related to the industrial injury. Consequently, the ALJ determined that the respondent acted reasonably in its efforts to obtain clarification from Dr. Hughes, and that the claimant failed to sustain her burden to prove that penalties should be imposed against the respondent.
However, the ALJ also found that Dr. Hughes recommended the HIV test to rule out any underlying infectious process which would account for the claimant’s myofascial pain and neuromuscular disorder. Consequently, the ALJ determined that the HIV test was diagnostic in nature and thus, was compensable. Therefore, the ALJ ordered the respondent to pay the medical bill for the HIV test.
On appeal, the claimant contends that neither the record nor applicable law supports the ALJ’s finding that the respondent acted “reasonably,” and therefore, the claimant argues that the ALJ erred in failing to impose penalties. In support, the claimant cites Pueblo School District No. 70 v. Toth, ___ P.2d ___ (Colo.App. No. 95CA0189, January 25, 1996). We perceive no error.
Initially, we note that Toth involved injuries occurring prior to July 1, 1991, the effective date of Senate Bill 91-218 (SB-218). Consequently Toth was decided under former § 8-53-116, C.R.S. (1986 Repl. Vol. 3B) [repealed and reenacted as § 8-43-304(1), C.R.S. (1990 Cum. Supp.) and currently codified with changes at § 8-43-304(1), C.R.S. (1995 Cum. Supp.)].
In contrast, this claim involves a 1992 injury, and thus, is governed by the provisions of SB 218. The provisions of SB 218 contain a specific statute concerning the imposition of penalties for the failure to timely pay a medical bill. Specifically, § 8-43-401(2)(a), C.R.S. (1995 Cum. Supp.), provides that:
“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).
Because the applicable law includes a specific penalty statute for the failure to pay medical benefits, § 8-43-401(2)(a) supersedes the general penalty statutes in § 8-43-304(1). See Glover v. Pro-Vin Enterprises, Inc., W.C. No. 4-160-452, May 26, 1995; Christensen v. International Ventures, W.C. No. 4-170-716, July 7, 1995. Accordingly, the claimant’s request for the imposition of penalties is governed by § 8-43-401(2)(a), and thus, we do not address the claimant’s arguments concerning Toth
and the imposition of penalties under § 8-43-304(1).
The respondent’s liability for medical benefits does not include all treatment provided subsequent to the injury. Rather, the respondent is only liable for treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.). Furthermore, where there is a legitimate controversy concerning the compensable nature of a particular treatment, the respondent is free to deny payment pending litigation of the cause of, or necessity for, a particular treatment. See Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986).
In the context of workers’ compensation, the term “willful” has been defined to mean acting “with deliberate intent” and not the result of thoughtfulness, forgetfulness, or mere negligence. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946); Wolfe v. Imperial Cabinets, Inc., W.C. No. 4-158-041, July 12, 1994. Therefore, under § 8-43-401(2)(a), the failure to pay medical benefits does not subject the respondent to penalties unless the failure is the result of a deliberate intent.
Furthermore, § 8-43-401(2)(a) limits the imposition of penalties to “wrongfully” withheld medical benefits. Webster’s II New College Dictionary (1995) defines “wrongfully” to mean “unlawful” or “unjust.” Applying the plain and ordinary meaning of the word to § 8-43-401(2)(a), does not create an absurd result. Therefore, we conclude that the respondent is not subject to the imposition of penalties under §8-43-401(2)(a), unless its failure to timely pay medical benefits is deliberate and unjust. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
It follows that § 8-43-401(2)(a) does not impose a strict liability standard for the failure to timely pay medical benefits. Instead, §8-43-401(2)(a) only subjects the respondent to penalties where there is no legitimate controversy concerning whether the respondent is liable for the treatment in issue. In this regard, we note that the claimant concedes in her brief that the purpose of the statute is to punish “misconduct.”
The determination of whether the insurer’s actions were deliberate and unjust is factual in nature. See City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). As such, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995), cert. denied, December 4, 1995. In applying the substantial evidence test, we must defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence and the plausible inferences drawn from the record. Ackerman v. Hilton’s Mechanical Men, Inc., supra.
Here, the ALJ’s finding that the respondent’s failure to pay for the HIV test was based upon a legitimate controversy is supported by substantial evidence in Dr. Hughes’s reports. Although the claimant argues that the respondent did not sufficiently investigate its liability for the bill, we conclude that the ALJ’s finding that the respondent took “reasonable action” is also supported by substantial evidence. Furthermore, these findings implicitly reflect the ALJ’s determination that the respondent’s actions were not “unjust” or “unlawful.” See Williams v. Industrial Commission, supra. Therefore, the ALJ did not err in failing to impose penalties.
The claimant’s remaining arguments have been considered and do not alter our conclusion. Consequently, we need not consider whether the ALJ erred in finding that the claimant did not present evidence concerning her damages.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 18, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 14, 1996 to the following parties:
Barbara Sears, 946 E. Costilla St., Colorado Springs, CO 80903
Penrose Hospital, Attn: Ginny Weed, P.O. Box 7021, Colorado Springs, CO 80933
Shirley Va’i, Sisters of Charity, Health Care Systems, Inc., Employee Injury Management, 4815 List Dr., Ste. 111, Colorado Springs, CO 80919
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Susan Kurachi Reeves, Esq., 111 S. Tejon St., #1100, Colorado Springs, CO 80903-2253 (For the Respondent)
BY: _______________________