W.C. No. 4-258-442Industrial Claim Appeals Office.
July 26, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Gandy (ALJ) insofar as it failed to impose a greater penalty for the claimant’s failure timely to report the injury in writing. We affirm.
The ALJ found that the claimant sustained a compensable back injury on September 1, 1992. However, the claimant continued to work and he experienced a reduction in pain after “a couple of days.” The claimant did not report the injury to the employer at this time.
The ALJ further found that, over time, the claimant’s back pain worsened until he could no longer work on May 18, 1995. The claimant then reported the injury to the employer on May 22, 1995.
Under these circumstances, the ALJ concluded that the claimant should be assessed a penalty of four days “from May 18, 1995, to May 22, 1995” based on his failure to report the injury in a timely fashion. In his oral remarks, the ALJ emphasized that the claimant worked the “entire time” between the date of the injury and May 22, 1995.
On review, the respondent contends that the ALJ erred assessing a penalty based on each day the claimant missed work, rather than imposing a penalty for each day that he failed to report the injury. In support of this proposition, the respondent cites evidence in the record that the claimant was “aware” of his injury when it happened in September 1992, and in fact sought chiropractic treatment for his back in February 1993. We are unpersuaded.
Section 8-43-102(1)(a), C.R.S. (1995 Cum. Supp.), provides as follows:
“Every employee who sustains an injury resulting from an accident shall notify said employee’s employer in writing of the injury within four days of the occurrence of the injury. . . . Otherwise, if said employee fails to report said injury in writing, said employee may lose up to one day’s compensation for each day’s failure to so report.”
The respondent’s argument notwithstanding, we do not believe that the ALJ read the statute to mean that a penalty can be imposed only after the claimant misses work. Rather, we understand that the ALJ exercised his discretion to limit the penalty to that period of time when the claimant did not report the injury in writing and was actually disabled and missing work. The statute itself affords the ALJ such discretion because it states the claimant “may” lose compensation. See Emigh v. Wal-Mart Stores, Inc.,
W.C. No. 4-151-148, April 14, 1995.
Presumably, if the ALJ believed that the statute permits imposition of a penalty only after the claimant misses work, no penalty would have been imposed in this case. In that case, the ALJ would simply have determined that the claimant reported the injury on May 22, within four days of the time he began missing work on May 18. Instead, the ALJ commenced the penalty as soon as the claimant began missing work.
Moreover, we perceive no abuse of discretion in the ALJ’s assessment of the penalty. Although the respondent made general allegations of prejudice arising from the claimant’s delay in reporting the injury, it offered no concrete proof of such prejudice at the time of the hearing. Moreover, the respondent seeks imposition of a penalty against future temporary disability benefits based on a period of time during which the claimant failed to report the injury but continued to work for the respondent-employer. We cannot say the ALJ erred in concluding that imposition of such a penalty would work a hardship on the claimant while failing to punish any conduct which substantially prejudiced the respondent. See Emigh v. Wal-Mart Stores, Inc., supra.
In light of this disposition, we need not address the respondent’s other argument.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 26, 1996 to the following parties:
Ralph A. Rhodes, 915 Park St., Sterling, CO 80751
J. W. Operating Co., P.O. Box 305, Wray, CO 80758-0305
Scott Wetzel Services, Inc., P.O. Box 6578, Englewood, CO 80155
Helena Schultz, Esq., P.O. Box 85, Brush, CO 80723-0085 (For the Claimant)
Mark M. Dumm, Esq. Bernard Woessner, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For the Respondents)
By: ___________________