W.C. No. 3-952-034Industrial Claim Appeals Office.
May 3, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which required National Union Fire Insurance (National) to pay a penalty for failing timely to pay the proceeds of a full and final settlement. We set aside the order and remand for the entry of a new order.
On May 31, 2001, the parties entered into a stipulation for the full and final settlement of the workers’ compensation claim in exchange for the respondents payment of a lump sum award. The settlement was approved in an order dated June 4, 2001. Because the settlement proceeds were not paid until July 13, 2001, the claimant requested penalties.
Under former § 8-53-116 C.R.S. (1989 Cum. Supp.) (amended for injuries occurring on or after July 1, 1991), which governs this claim, the ALJ may assess penalties of up to $100 per day where an insurer’s failure to comply with a lawful order is objectively unreasonable Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995).
Neither the June 4 order or the settlement agreement provided a specific deadline for National’s payment of the settlement proceeds. Consequently, the ALJ interpreted the settlement agreement to mean the parties intended payment within a reasonable time. The ALJ found the insurer reasonably should have paid the settlement proceeds by June 15, 2001, and that National’s failure to pay the settlement proceeds before July 13, 2001 was objectively unreasonable. Therefore, the ALJ ordered National to pay the claimant penalties at the rate of $50 per day from June 15, 2001 through July 12, 2001. The respondents timely appealed.
On review the respondents contend, inter alia, the ALJ erroneously determined the parties intended National would comply with the June 4 order by June 15, 2001. Relying on Mackins v. Pete Lien Sons Inc.,
W.C. No. 4-320-228 (October 13, 2000), the respondents contend the ALJ should have allowed National 30 days from the date of the order to pay the settlement proceeds. We conclude the ALJ’s findings are insufficient to permit appellate review of the respondents’ contention and, therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2001; Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
The ALJ did not make any specific finding which explains the basis for her determination that the parties intended the settlement proceeds to be paid by June 15. Similarly, we have reviewed the transcript and the ALJ’s oral ruling does not explain the basis for the ALJ’s determination. See
Tr. pp. 36, 37; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Under these circumstances, we are unable to ascertain the evidence the ALJ relied upon or the inferences she drew from the record in finding that the parties intended the settlement proceeds be paid by June 15. Consequently, the ALJ’s findings of fact are insufficient to determine whether the ALJ erred in finding the settlement proceeds were reasonably due no later than June 15, 2001. On remand the ALJ shall enter specific findings of fact which articulate the basis for her determination concerning what was a reasonable period of time for National’s compliance with the June 4 order.
The respondents also point out that under former § 8-53-116 all penalties are payable to the Subsequent Injury Fund (SIF). Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). The claimant concedes this argument. Therefore, for purposes of our remand, any penalties imposed by the ALJ shall be made payable to the SIF not the claimant.
Finally, contrary to the respondents’ contention, the ALJ allowed the respondents to submit evidence they paid interest on the settlement proceeds. (See Tr. Pp. 4-5). Therefore, we reject the respondents’ contention the ALJ refused to consider their evidence of mitigation.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 18, 2001 is set aside and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Copies of this decision were mailed May 3, 2002 to the following parties:
Cindy L. Maloney, 1386 Nokomis Dr., Colorado Springs, CO 80915
Ampex Corporation, 600 Wooten Rd., Colorado Springs, CO 80915
National Union Fire Insurance, 175 Water St., New York, N.Y. 10038
Brice Berkeland, Crawford Co., 4570 Hilton Pkwy., #104, Colorado Springs, CO 80907
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Joan A. Goldsmith, Esq., 6665 Delmonico Dr., #D, Colorado Springs, CO 80919 (For Respondents)
BY: A. Hurtado