W.C. No. 4-214-079Industrial Claim Appeals Office.
December 17, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which imposed penalties for the insurer’s failure to comply with an order. The claimant argues the ALJ abused his discretion because the amount of the penalty was too low, and that the ALJ’s order violated an order remanding the case. We affirm.
This matter is before us for the third time. A summary of the factual history of this case is contained in our prior orders dated October 24, 2000, and June 25, 2002. We incorporate that history in this order.
Suffice it to say that on June 25, 2002, we remanded the matter to the ALJ with directions to determine the amount of the penalty to be imposed on the respondent-insurer for failure to comply with an order to pay disfigurement benefits. The ALJ was directed to consider only the evidence presented at the hearing on January 12, 2002.
On September 20, 2002, the ALJ entered the order currently under review. The ALJ found that on July 14, 1999, the respondent-insurer was ordered to pay $1,000 in disfigurement benefits within 30 days, or request a hearing on the issue. The respondent did not request a hearing, nor did it pay the benefits until September 21, 1999. Hence, the payment was 39 days late. (Findings of Fact 7 and 8).
Further, the ALJ found the claimant presented no persuasive evidence that he suffered injury as a result of the delay in payment, or that the insurer exhibited a pattern of delaying payment of benefits. Further, the ALJ noted that before the period of time the disfigurement benefits were delayed, the respondents had filed an admission of liability claiming an overpayment stemming from a dispute about the claimant’s impairment rating. Under these circumstances, the ALJ concluded a penalty of $1 per day, for a total of $39, should be imposed on the respondent-insurer.
On review, the claimant first contends the ALJ abused his discretion because he did not impose greater penalties on the insurer. In support of this contention, the claimant notes that in our first order we held the ALJ improperly considered remarks of respondents’ counsel concerning the reasons why the insurer delayed payment. The claimant asserts that if $1 per day was a sufficient penalty when the insurer provided an “excuse” for its actions, a greater penalty must be imposed where no excuse is provided. Further, the claimant argues that failure to obey an order is akin to contempt of court, and it is unreasonable to impose a minimal penalty in the absence of any plausible excuse for the conduct. We find no error.
Section 8-43-304(1), C.R.S. 2002, authorizes imposition of a penalty of “not more than five hundred dollars per day” for each day an insurer “fails, neglects, or refuses to obey any lawful order.” Determination of the amount of the penalty is discretionary with the ALJ, and may include consideration of such factors as the extent of harm to the claimant, the duration and type of misconduct, the insurer’s motivation for violating the order, and whether or not the misconduct is representative of a pattern of misconduct. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996); Trumble v. Choice Casing Service, Inc.,
W.C. No. 4-125-136 (March 29, 1996), aff’d. Choice Casing Service, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0664, January 16, 1997) (not selected for publication).
Because determination of the amount of the penalty is discretionary, we may not interfere with the ALJ’s order unless an abuse is shown. An abuse of discretion does not occur unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Jarosinski v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 02CA0332, December 5, 2002). Further, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999).
Here, we perceive no abuse of discretion. The claimant’s assertion notwithstanding, the ALJ explicitly found there was some mitigation of the insurer’s failure to pay the disfigurement award based on the claimed overpayment. (Findings of Fact 4, 7, 10). This constitutes a plausible inference from the respondents’ final admission and their decision to challenge the DIME physician’s impairment rating. Although the assertion of the overpayment did not rise to the level of a legal defense, it at least provided some rationale for the insurer’s action and tended to refute the possible inferences that the insurer was ignoring the disfigurement award for no reason, or defying it as an act of deliberate bad faith.
Moreover, the ALJ found the claimant failed to present affirmative evidence regarding the impact of the delayed payment, and presented no evidence of a pattern of misconduct. Under these circumstances, we conclude the ALJ’s order is within the bounds of reason and must be upheld.
We reject the claimant’s assertion that the ALJ disobeyed our order of remand because he did not consider the “type” of violation, the duration of the violation, and the fact that the claimant notified the insurer of the violation by letter. Indeed, all of these factors were specifically mentioned in the ALJ’s order. We cannot say as a matter of law that any of these factors required the ALJ to assess a greater penalty.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 17, 2002 to the following parties:
Maxie Jiminez, 1263 Lipan Dr., Denver, CO 80221
Amax Henderson Project, P. O. Box 68, Empire, CO 80438
Mike Steiner, Esq., Pinnacol Assurance — Interagency Mail
Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
By: A. Hurtado