W.C. No. 4-441-446Industrial Claim Appeals Office.
February 23, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay temporary disability benefits. We affirm.
On November 1, 1999, the claimant, who was then a minor, suffered a work-related injury. On November 17, 1999, the respondents filed a General Admission of Liability for the payment of temporary total disability benefits commencing November 2, 1999, at the rate of $279.62 per week. This amount was based on the maximum temporary disability rate allowed by law less a 50 percent reduction in benefits under §8-42-112(1)(b), C.R.S. 2000 (50 percent reduction of benefits where the injury is the result of the claimant’s willful failure to comply with a reasonable safety rule).
The respondents subsequently filed a petition to reduce the claimant’s temporary disability rate to $103.33 per week effective November 2, 1999, based upon their realization that minors are not automatically entitled to temporary disability benefits at the maximum rate provided by law. See Hussion v. Industrial Claim Appeals Office, 991 P.2d 346 (Colo.App. 1999); Arkansas Valley Seeds, Inc., v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo.App. 1998). The respondents also requested credit for temporary disability benefits overpaid as a result of their erroneous calculation of the temporary disability rate.
Based upon the stipulated average weekly wage of $310, the ALJ found the claimant’s correct temporary disability rate is $206.67 per week. However, the ALJ found the respondents admitted liability, although erroneously, for temporary disability benefits at the rate of $559.23 per week less the 50 percent offset under § 8-42-112(1)(b). The ALJ also found the respondents failed to sustain their burden to prove the claimant’s injury was the result of a willful failure to obey a safety rule. Consequently, the ALJ determined the respondents were not entitled to a 50 percent reduction of their liability for temporary disability benefits. The ALJ further determined the respondents were not entitled to retroactive relief from the erroneous admission. Therefore, the ALJ ordered the respondents to pay temporary disability benefits at the rate of $559.23 per week from November 2, 1999 through February 23, 2000, and benefits at the rate of $206.67 per week commencing February 24, 2000.
On review, the respondents contend there is no evidence to support the ALJ’s finding that the respondents admitted liability for temporary disability benefits at the rate of $559.23 per week. The respondents contend they admitted liability for temporary disability benefits at the rate of $279.62 per week, and that the claimant has received all benefits due to him under the law. Under these circumstances, the respondents argue the ALJ erred as a matter of law in requiring them to pay any further temporary disability benefits for the period November 2, 1999 through February 23, 2000. We disagree.
The respondents are not required to admit liability for temporary disability benefits. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). However, § 8-43-203(2)(d), 2000, provides that: “if any liability is admitted, payments shall continue according to admitted liability.” The courts have interpreted this provision to mean that if an admission of liability is filed the respondents are bound by the admission until relieved of the admission by order of the ALJ. HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990). Furthermore, except where the admission is fraudulently induced by the claimant’s material misrepresentations or the claimant engaged in misconduct subject to a penalty, the respondents are limited to prospective relief from an improvidently filed admission. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985); Arenas v. ICAO, 8 P.3d 558
(Colo.App. 2000); Lewis v. Scientific Supply Co., 897 P.2d 905
(Colo.App. 1995).
Here there is no finding or assertion that the claimant fraudulently induced the respondents’ mistaken belief that minors are entitled to temporary total disability benefits at the maximum rate provided by law. Therefore, the ALJ did not err in finding that the respondents are limited to prospective relief from their erroneous General Admission of Liability. See Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981);HLJ Management Group, Inc. v. Kim, supra.
Moreover, the ALJ reasonably construed the respondents’ General Admission of Liability as admitting liability for temporary disability benefits at the rate of $559.23. With regard to the admitted temporary disability rate, the respondents’ General Admission stated “CLMT IS A MINOR USING MAX TTD RATE, 50% OFFSET FOR SAFETY VIOLATION.” The respondents’ General Admission of Liability and Amended Petition to Modify, Terminate or Suspend Compensation dated December 30, 1999, contains substantial evidence that the maximum temporary disability rate at the time of the claimant’s injury was $559.23. Under these circumstances, the ALJ could, and did, find that the respondents admitted liability for temporary disability benefits at the rate of $559.23 per week in the absence of the 50 percent safety penalty. Further, the respondents paid benefits at the rate of $279.62, not $559.23. Therefore, contrary to their argument, they did not pay in accordance with the admitted liability. If follows that the ALJ correctly ordered the respondents to pay the balance of admitted liability for temporary disability benefits at the rate of $559.23 per week.
We also note that implicit in the respondents’ request for a 50 percent reduction of benefits under § 8-42-112(1)(b), is the determination of whether all admitted liability for temporary disability benefits had been paid if there was a safety penalty. Thus, we reject the respondents’ contention that the amount of compensation due the claimant prior to February 24, 2000 was not endorsed for adjudication by the ALJ.
The respondents remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 18, 2000, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 February 23, 2001 to the following parties:
Ricardo Garcia, 3734 Marion St., Denver, CO 80205
Dufficy Sons d/b/a Denver Central Iron Works, 4245 Fox St., Denver, CO 80216-2640
Fremont Compensation Insurance Group, 7887 E Belleview Ave., #310, Englewood, CO 80111
Marshall A. Fogel, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
Lynn D. Petersen, Esq. and James B. Buck, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Pendroy