W.C. No. 4-525-832Industrial Claim Appeals Office.
March 24, 2003
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Jones (ALJ). The respondents contend the ALJ erroneously calculated the penalty imposed against the respondent-insurer for failing timely to comply with § 8-43-203(1)(a), C.R.S. 2002. We set aside the order and remand the matter for the entry of a new order.
Section 8-43-203(1)(a), provides that within twenty days after notice or knowledge of an injury to an employee which disables said employee for more than three shifts or three calendar days or results in permanent physical impairment or death, the employer or if insured, the employer’s insurance carrier shall notify the division in writing whether liability is admitted or contested.
Section 8-43-203(2)(a), states that “If such notice is not filed as provided in subsection (1) of this section, the employer or, if insured, the employer’s insurance carrier, as the case may be, may become liable to the claimant, if the claimant is successful on the claim for compensation for up to one day’s compensation for each day’s failure to so notify; except that the employer or, if insured, the employer’s insurance carrier shall not be liable for more than the aggregate amount of three hundred sixty-five days’ compensation for failure to timely admit or deny liability.” (Emphasis added).
The claimant suffered a work-related injury on September 11, 1999. At the time of the injury the claimant earned $10.76 a day. Effective October 6, 2001, her wage increased to $27.19 a day.
The ALJ’s pertinent findings may be summarized as follows. The claimant gave the respondent-insurer written notice of the injury on October 9, 1999. The claimant subsequently underwent surgery to treat the industrial injury. The claimant was temporarily and totally disabled for several weeks in October and November 2000 and the respondent-insurer paid wage reimbursement benefits. On January 30, 2002, the respondents filed a General Admission of Liability which admitted liability for temporary disability benefits from November 13, 2000, through December 8, 2000.
Based on these findings, the ALJ determined the respondent-insurer knew as of November 2000 that the claimant suffered a work-related injury which disabled her for more than three work-shifts. Further, the ALJ determined § 8-43-203(2)(a) authorizes the imposition of penalties for a 365 day period preceding the date of the respondents’ admission of liability. Therefore, the ALJ ordered the respondent-insurer to pay a penalty equal to one day’s compensation for each of the 365 days preceding January 30, 2002 that the respondent-insurer failed to admit or deny liability.
On review, the respondents do not dispute the respondent-insurer failed to comply with § 8-43-203(1)(a) for a period of at least 365 days. Rather, the respondents’ sole contention is that the ALJ erroneously calculated the penalty based on the claimant’s rate of compensation for 365 days preceding January 30, 2002, instead of the 365 day period commencing November 2000, which involved a lower compensation rate. We agree.
Resolution of the respondents’ argument is dependent on the meaning of that part of § 8-43-203(2)(a), which states, “the insurance carrier shall not be liable for more than the aggregate amount of three hundred sixty-five days’ compensation.” In interpreting the statute, we must attempt to further the legislative intent. Davison v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0922, January 2, 2003). To discern the intent the legislative words and phrases should be interpreted according to their plain and obvious meaning, and a forced or strained construction should be avoided if simple meaning is clear Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997); Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997); Ritter v. Industrial Commission, 44 Colo. App. 32, 615 P.2d 40 (Colo.App. 1980). Further we must assume the General Assembly intended the statute to effect a just and reasonable result and the entire statutory scheme should be construed in a manner that gives consistent, harmonious, and sensible effect to all of its parts. See Vaughn v. McMinn, 945 P.2d 404
(Colo. 1997); Popke v. Industrial Claim Appeals Office, 944 P.2d 677
(Colo.App. 1997).
Section 8-43-203(1)(a) expressly states that the insurer’s statutory duty to admit or deny liability arises when the insurer has notice or knowledge of an industrial injury that disables the claimant for more than three work shifts or three calendar days. After such notice, the statute affords the insurer 20 days to file a written admission or denial of liability. The failure to file the notice triggers the insurer’s liability for penalties of up to one day’s compensation for each day’s failure timely to admit or deny liability. Accordingly, the plain and clear language of the statute provides that the penalty period for failing to comply with § 8-43-203(1)(a) begins on the 21st day after the insurer has the requisite notice or knowledge.
Further, in workers’ compensation claims the term “aggregate” means total. Jefferson County Public Schools v. Sago, 786 P.2d 486 (Colo.App. 1989); Thornton v. Teeter, 37 Colo. App. 427, 538 P.2d 133 (1976). It follows that penalties imposed under § 8-43-203(2)(a) end when a total of 365 days have elapsed from the first violation date. This is true because the statute contemplates the penalty will be based on the daily rate of compensation the claimant would be entitled to receive during the violation period and that is the first 365 days after the compliance period expired and, not a randomly selected period of days. Therefore, we conclude the ALJ erred insofar as she calculated the penalty based on the daily rate of compensation for the 365 days preceding the filing of the General Admission.
However, the ALJ did not determine the specific date the respondent-insurer’s duty to admit or deny liability was triggered and the parties did not stipulate to a date. (Tr. pp. 10, 19, 20). Consequently, the matter must be remanded to the ALJ for a determination of the date the respondent-insurer had notice or knowledge the claimant suffered an injury which rendered her temporarily disabled for more than three work shifts or three calendar days. Within her discretion the ALJ may hold an additional hearing to resolve this issue. Based on this determination the ALJ shall enter a new penalty order which is consistent with § 8-43-203(2)(a).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 25, 2002, is set aside and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Copies of this decision were mailed March 24, 2003 to the following parties:
Benita Martinez, 4045 S. Grant St., Englewood, CO 80110
Pic N Save, 1951 S. Federal Blvd., Denver, CO 80219
Jennifer Page, Sentry Insurance a Mutual Company, P. O. Box 8032, Stevens Point, WI 54481
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
BY: A. Hurtado