W.C. No. 4-319-661Industrial Claim Appeals Office.
September 22, 1997
FINAL ORDER
The respondent filed a Petition to Review an order of Administrative Law Judge Martinez (ALJ) dated May 28, 1997. We affirm.
The matter came before the ALJ for hearing on May 7, 1997. The respondent did not attend the hearing. However, based upon the evidence presented the ALJ found that the claimant suffered a disabling right shoulder injury on August 19, 1995, which arose out of and in the course of his employment for the respondent. The ALJ ordered the respondents to provide medical benefits and pay the claimant’s unpaid medical expenses of $142. The ALJ also calculated the claimant’s average weekly wage as $282.95, and ordered the respondent to pay temporary total disability benefits from August 20, 1995 to September 4, 1995. Further, the ALJ awarded disfigurement benefits of $900.
In view of the ALJ’s further determination that the respondent was uninsured for workers’ compensation at the time of the injury, the ALJ increased the claimant’s temporary disability and disfigurement benefits by fifty percent. The ALJ also found that the respondent failed to admit or deny liability for the claimant’s injury. Therefore, the ALJ imposed an aggregate penalty of $24,454.10, based upon one day’s compensation for each day the respondent failed to admit or deny liability between September 11, 1995, and May 7, 1997.
The sole allegation in the respondent’s Petition for Review is that the “judgment is overinflated and excessive.” Further, the respondent did not file a brief in support of his petition. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Our authority to review the ALJ’s order is defined in §8-43-301(8), C.R.S. 1997. That statute precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
Here, the respondent does not contest the sufficiency or accuracy of the ALJ’s factual determinations. Furthermore, the findings support the ALJ’s order, and the order is consistent with the applicable law. In particular, § 8-43-408(1), C.R.S. 1997 requires a fifty percent increase of benefits where the employer is uninsured for workers’ compensation at the time of the injury.
Moreover, § 8-43-203(2)(a), C.R.S. 1997 allows the ALJ to impose a penalty up to one day’s compensation for each day the employer fails to admit or deny liability in compliance with §8-43-203(1). In the absence of an “abuse of discretion,” we may not interfere with the amount of a penalty imposed by an ALJ. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). An abuse of discretion is present only if, under the totality of the circumstances, the ALJ’s order exceeds the bounds of reason Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Under the facts of this claim as determined by the ALJ, we cannot say that the imposition of a daily penalty for the failure to admit or deny liability equal to the claimant’s daily compensation rate exceeds the bounds of reason. We also note that this penalty rate does not exceed the maximum rate provided by §8-43-203(2). See Eachus v Cooper, 738 P.2d 383 (Colo.App. 1986). Therefore, there is no abuse of discretion and we have no basis on which to disturb the ALJ’s order. Section 8-43-301(8) Pueblo School District No. 70 v. Toth, 924 P.2d 1094
(Colo.App. 1996).
IT IS THEREFORE ORDERED that the ALJ’s order dated, May 28 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed September 22, 1997 to the following parties:
Anthony W. Briggs, 60016 Hwy 90, Montrose, CO 81401
Lin Stiles Logging, 13332 Marine Dr., Montrose, CO 81401
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Special Funds Unit, Attn: Barbara Carter (Interagency Mail)
Div. of Workers’ Compensation, Attn: Rebecca Greben (Interagency Mail)
BY: _______________________________