W.C. No. 3-941-887Industrial Claim Appeals Office.
January 9, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied the request for penalties based on allegedly late payments of permanent total disability benefits. We affirm.
The ALJ found the claimant was accustomed to receiving permanent total disability benefits on a weekly basis. However, the claimant did not receive weekly checks on August 25, September 1, September 8, and September 15, 2000. When this problem was drawn to the attention of the employer’s third party administrator, a check for all weeks was provided on September 21, 2000.
The claimant argued she was entitled to penalties under §8-43-304(1), C.R.S. 2001, based on the employer’s failure to pay the permanent total benefits on a weekly basis. However, the ALJ found the only provision governing payment of permanent total disability benefits is § 8-43-401(2)(a), C.R.S. 2001, which provides that “after all appeals have been exhausted or in cases were there have been no appeals, all insurers and self-insured employers shall pay benefits within thirty days of when any benefits are due.” The ALJ found all benefits were paid within thirty days of the due date. Further, the ALJ found there was no willful delay and the problem was promptly cured.
On review, the claimant contends the ALJ erred in failing to assess penalties under § 8-43-304(1), C.R.S. 2001, based on the “late” payments. We note the claimant failed to procure a transcript of the hearing. Consequently, we must assume the ALJ’s pertinent findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Because of this presumption, we may not interfere with the ALJ’s finding of fact. Section 8-43-301(8), C.R.S. 2001.
In order to assess penalties under § 8-43-304(1), a party must prove, as a baseline requirement, that there was a violation of the Act, or a failure or refusal to perform a duty lawfully enjoined, or a failure to obey a lawful order. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995). Although the claimant asserts on appeal that the “Division of Labor told King Soopers that my checks had to be mail [sic] out every Friday,” there is no evidentiary record to support this factual allegation, and the ALJ entered no such finding. Neither does the claimant’s brief on appeal identify any other statutory provision or rule requiring payment of permanent total disability benefits on a weekly schedule. Thus, on the limited record before us, there is no basis to conclude the claimant proved a violation of any provision of the Act, including § 8-41-401(2)(a), or violation of a duty lawfully enjoined, or violation of any lawful order. Accordingly, we find no basis for interfering with the ALJ’s determination that the claimant failed to prove any entitlement to penalties under § 8-43-304(1).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 7, 2001, 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. 2001. 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 January 9, 2002 to the following parties:
Delores R. Risberg, 10340 W. 44th Ave., #2-C, Wheat Ridge, CO 80033
King Soopers, the Kroger Co., P. O. Box 5567, Denver, CO 80217-5567
Landon Wallis, RSKCo, P. O. Box 5307, Denver, CO 80217
Jacquelyn L. Brumfield, Esq., Mountain States Employers Council, Inc., P. O. Box 539, Denver, CO 80201-0539 (For Respondents)
BY: A. Pendroy