W.C. No. 4-406-675Industrial Claim Appeals Office.
April 26, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ Coughlin) which denied her claim for penalties based on the respondents’ alleged failure to provide medical treatment. We affirm.
At the hearing, the claimant argued the respondents are subject to penalties because they denied payment for medical treatment from November 1999 through March 20, 2000, in “retaliation” for the claimant’s decision to seek an order awarding psychological treatment. The claimant further asserted the respondents denied authorization for a prescription which she presented to a pharmacist in August 2000.
The ALJ ruled the claim for penalties is governed by §8-43-401(2)(a), C.R.S. 2000, not § 8-43-304(1), C.R.S. 2000. Moreover, the ALJ found the claimant failed to present “sufficient credible evidence that the insurer willfully delayed or terminated reasonable and necessary medical benefits.” Finally, the ALJ found the evidence failed to establish that the respondents willfully violated any order.
On review, the claimant first contends the ALJ erroneously held that “specific penalty provisions prevail over general penalty provisions.” However, it is well established that where the “gravamen” of the respondents’ alleged misconduct involves the failure to pay medical benefits, the claim for penalties is governed by the specific provisions of § 8-43-401(2)(a), not the general provisions of §8-43-304(1). Holliday v. Industrial Claim Appeals Office, 997 P.2d 1212
(Colo.App. 1999), cert. granted, May 15, 2000; Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997). Thus, the ALJ’s interpretation and application of the law was correct.
The claimant next argues the ALJ erred in concluding that “a specific penalty eliminates the general penalty as to violation of orders.” Apparently, the claimant is arguing that the respondents’ conduct violated an order of Administrative Law Judge Rumler, dated May 4, 2000, which found that the claimant sustained a psychological injury and ordered the respondent insurer to pay for “psychological care to be determined by Kathy McCranie, M.D.”
We have previously interpreted the Holliday decision as holding that, even if the failure to pay medical benefits arguably constitutes violation of an order, § 8-43-401(2)(d) governs the imposition of penalties. E.g. Giddings v. Northern Telecom, W.C. No. 4-293-203 (January 8, 2001). In Giddings, we stated the following:
Furthermore, the issue in Holliday concerned whether or not the respondents were subject to penalties under § 8-43-304 where they failed to pre-authorize medical treatment in accordance with an order of a prehearing administrative law judge. Although § 8-43-304(1) permits the imposition of penalties for failure to obey lawful orders, the court held that the statute did not govern the claim for penalties because the gravamen of the respondents’ conduct was the failure to pay for medical treatment. We are mindful that Holliday is pending certiorari review on the question of whether the court of appeals erred in holding that violation of an order concerning the payment of medical benefits can only be penalized under § 8-43-401(2). (Emphasis in original). However, we are bound by published decisions of the court of appeals. C.A.R. 35(f). Therefore, unless and until Holliday is modified or reversed, we are compelled to conclude the ALJ correctly refused to impose penalties under § 8-43-304(1), where, as here, the gravamen of the challenged conduct is the failure to pay medical benefits.
We decline to depart from our prior decisions. Thus, we conclude the ALJ correctly applied § 8-43-401(2)(a), by requiring the claimant to prove the respondents willfully stopped or delayed payment of medical benefits, even if that conduct arguably involved violation of an order.
However, even if we were to conclude that § 8-43-304(1) governs the claim for penalties, we fail to perceive how the claimant established any violation of ALJ Rumler’s order. That order involved the provision of psychological treatment, and was not issued until May 2000. Because the claimant is seeking imposition of penalties for the respondents’ failure to provide medical treatment between November 1999 and March 2000, the alleged misconduct could not have involved a violation of the ALJ Rumler’s subsequent order. Further, the record does not establish that the medication, which the claimant alleges the respondents refused to pay for, was prescribed as “psychological” treatment. Thus, the record does not establish this conduct amounted to a violation of ALJ Rumler’s order.
Finally, ALJ Coughlin found the respondents appealed ALJ Rumler’s order, and the appeal was pending at the time ALJ Coughlin entered the order denying penalties. The respondents may not be penalized for failure to obey an order during the pendency of a good faith appeal Industrial Commission v. Continental Investment Co., 85 Colo. 475, 277 P. 303 (1929). The claimant presented no evidence, and makes no argument on appeal, that the respondents’ appeal from ALJ Rumler’s order was not taken in good faith. Thus, the respondents may not be penalized for an alleged violation of ALJ Rumler’s order.
Insofar as the claimant asserts the ALJ’s findings are not supported by the evidence, we disagree. In order to prove a willful failure to pay medical benefits for purposes of § 8- 43-401(2)(a), the claimant must show the respondents’s conduct was deliberate and unjust. The question of whether these criteria have been met is one of fact for determination by the ALJ. Sears v. Penrose Hospital, supra.
Here, as the ALJ found, the claimant presented only remote evidence tending to establish the respondents’ motivations or reasons for failing to pay medical benefits between November 1999 an March 2000. Indeed, the claimant’s testimony concerning this issue was based on hearsay remarks made to her by a health care provider, and there was no direct evidence concerning the reasons for the respondents’ conduct. (Tr. p. 21). The ALJ was not required to credit this evidence, and we may not substitute our judgment for hers concerning the weight to be accorded the claimant’s testimony. Section 8-43-301(8), C.R.S. 2000, Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We also note the claimant could not say whether the respondents ever received the disputed prescription, and she testified that she did not call the insurer regarding the matter. (Tr. p. 18). Under the circumstances, the ALJ was certainly not required to find the evidence amounted to proof of deliberate and unjust conduct by the respondents.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that ALJ Coughlin’s order, dated October 4, 2000, 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. 2000. 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 April 26, 2001 to the following parties:
Christine Salgado, 857 S. Tejon St., Denver, CO 80223
Guiry’s Paint and Wallpapering, 2468 S. Colorado Blvd., Denver, CO 80222-5907
BICO Insurance, Michael Kramish, Claims Examiner, Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy