W.C. No. 4-824-897.Industrial Claim Appeals Office.
December 14, 2010.
FINAL ORDER
The respondent insurer seeks review of an order of the Acting Director of the Division of Workers’ Compensation (Director) dated August 13, 2010, that imposed penalties for failure to timely file a position statement. We affirm.
It appears that the essential facts are not in dispute. In the Director’s order dated July 21, 2010 it was found that the claimant filed a Workers’ Claim for Compensation on May 18, 2010. The Division sent the claim to the insurer on May 19, 2010 and requested a position statement. On June 8, 2010 a notice was sent to the claimant stating that the Division had not received a position statement on the claim. A copy was sent to the insurer. The Director entered an order dated July 21, 2010 finding that a position statement had not been received and informing the insurer that it appeared it had failed to meet the applicable requirements of § 8-43-203 C.R.S. and W.C. Rule of Procedure 5-2(D), 7 Code Colo. Reg. 1101-3. The Director ordered the insurer to file a position statement within fifteen days from the date of his July 21, 2010 order.
We note that notice concerning liability is provided for in § 8-43-203(1)(a) and requires the employer’s insurance carrier to notify in writing the Division and the injured employee within twenty days after a report is, or should have been, filed with the Division whether liability is admitted or contested. The Rules of Procedure also provide for notifying the Division of the insurer’s position. In W.C. Rule of Procedure 5-2(D) it is provided that the insurer shall state whether liability is admitted or contested within 20 days after the date the Division mails to the insurer a Worker’s Claim for Compensation or Dependent’s Notice and Claim for Compensation.
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The Director then entered an order dated August 13, 2010 finding that no action had been taken by the insurer to comply with his July 21, 2010 order by filing either an Admission of Liability or an electronic Notice of Contest as its position statement. Therefore, for failure to comply with his July 21, 2010 order the Director ordered the insurer to pay penalties of $40.00 per day from August 6, 2010, the first business day more than 15 days after the mailing of the Director’s Order of July 21, 2010, and continuing until a position statement was filed. The Director imposed the penalty pursuant to §§ 8-43-304, 8-43-305, C.R.S. for failure to comply with the Director’s Order.
The insurer filed a Petition to Review and Supporting Brief of the Director’s Penalty Order dated August 13, 2010. The Director determined that a Supplemental Order was not appropriate and “Green Sheeted” the matter by forwarding it to us for our consideration.
In its Petition to Review and Supporting Brief of the Director’s Penalty Order dated August 13, 2010 the insurer sets forth facts that tend to explain its delay in responding and to mitigate any damages occasioned by such delay. The insurer explains that there was confusion with an earlier claim made by the claimant against the same employer. The insurer scanned the new information on the claim here into the open file on the prior claim instead of treating it as a new claim. The insurer argues that it immediately corrected the oversight once the error was discovered. We do not read the Petition to Review and Supporting Brief as challenging the finding that it failed to obey a lawful order by the Director. Rather, the issue appears to be given the oversight of the insurer whether a penalty should be imposed and the amount of the penalty.
Section 8-43-304 provides for imposition of a penalty against an insurer who fails, neglects, or refuses to obey any lawful order made by the Director. Because the issue of failure to obey a lawful order is factual in nature, we must uphold the Director’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. In our opinion, based on the essentially uncontested facts above, there is substantial evidence in the record to support a determination that the insurer failed to obey a lawful order entered by the Director.
On the issue of amount, because the Director’s authority is discretionary, we may not disturb the Director’s determination of the amount of the penalty to be imposed in the absence of fraud or an abuse of discretion. See Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005) Hall v. Home Furniture Co., 724 P.2d 94 (Colo. App. 1986) Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo. App. 1983). There is no assertion of fraud in this case. The legal standard for review of an alleged abuse of discretion is whether, under the totality of the factual circumstances
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at the time of the Director’s determination, the Director’s order “exceeds the bounds of reason.” Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985).
Here the $40.00 per day is well below the statutory maximum. The Director has not entered an order formally determining the total amount, but it appears from an email from a representative of the Director and from statements made in the Petition to Review and Brief that the total amount of the penalty is $480.00. There does not appear to be any controversy over the total amount. We cannot say that the Director abused his discretion in awarding a penalty of $40 per day for a total of $480.
IT IS THEREFORE ORDERED that the Director’s order dated August 13, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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JOSEPH ROMERO, DENVER, CO, (Claimant).
PAUL R. CLARK MASONRY, INC., LAKEWOOD, CO, (Employer).
EMPLOYERS COMPENSATION INSURANCE, Attn: PATRICK FLINN, C/O: CLAIM NO. 2008126731, HENDERSON, NV, (Insurer).
LAW OFFICE OF STEVEN H. GURWIN, Attn: STEVEN H. GURWIN, ESQ., DENVER, CO, (For Claimant).
McCREA BUCK, LLC, Attn: BRUCE B. McCREA, ESQ., DENVER, CO, (For Respondents).
DIVISION OF WORKERS’ COMPENSATION, Attn: PAUL TAURIELLO, ACTING DIRECTOR, DENVER, CO.
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