W.C. No. 4-230-954Industrial Claim Appeals Office.
March 28, 1997
FINAL ORDER
The non-insured employer has filed a Petition for Review of a final order of Administrative Law Judge Erickson (ALJ), which determined that the employer failed to comply with a lawful order dated March 23, 1995, and imposed penalties under §8-43-304(1), C.R.S. (1996 Cum. Supp.), at the rate of $500 per day. We affirm.
Section 8-43-304(1) provides that the ALJ “shall” impose a fine against an employer who “fails, neglects, or refuses to obey any lawful order.” See Sears v. Penrose Hospital,
___ P.2d ___ (Colo.App. No. 96CA0909, February 20, 1997). The statute affords the ALJ discretionary authority to impose a penalty of up to $500 a day, for each day the employer violates an order. See § 8-43-305, C.R.S. (1996 Cum. Supp.). Because the amount of the penalty is discretionary with the ALJ, we must uphold the ALJ’s determination in the absence of fraud or an abuse of discretion. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
Here, there is no assertion of fraud, and the legal standard on review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ’s determination, the ALJ’s order “exceeds the bounds of reason.”Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Where the ALJ’s order is supported by the record and the applicable law, there is no abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo. 1993); Louisiana Pacific Corporation v. Smith, 881 P.2d 456 (Colo App. 1994) (ALJ order for recovery of $17,000 overpayment at a rate of $16.66 per week, not abuse of discretion where no recovery rate is mandated by statute, and the order is supported by substantial evidence and plausible inferences drawn from conflicts in the record).
Here, the ALJ found that in an order dated March 23, 1995, the employer was required to reimburse the claimant for medical expenses incurred to treat the industrial injury which arose out of and in the course of the claimant’s work for the employer. The ALJ also found that the order required the employer to provide ongoing medical benefits, and that the employer had failed to comply with this order for a period of 612 days through the date of the hearing. The employer does not dispute these findings. To the contrary, the employer essentially concedes that it made no effort to comply with the order.
Moreover, the employer did not attend the hearing scheduled on the claimant’s application for penalties. As a result, the employer failed to present any evidence of mitigating circumstances for its failure to comply with the March 23 order. The employer argues that the ALJ should have considered the allegations contained in its pre-hearing “Motion” filed in response to the claimant’s application for a hearing on the claim for penalties. However, the factual allegations made in the employer’s “Motion,” as well as in the Petition for Review are not evidence, and cannot substitute for the employer’s failure to present evidence at the hearing. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
Consequently, we cannot say that under the totality of the circumstances, the ALJ’s determination that the employer’s violation warranted the maximum penalty allowed under §8-43-304(1) exceeds the bounds of reasons. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996) (insurer’s “repeated and stubborn refusal to respond” to requests from claimant’s counsel for the payment of medical benefits supported the ALJ’s imposition of penalties at rate of $500 per day); Choice Casing Service, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0664, January 16, 1997) (not selected for publication) ($63,000 penalty for delay in filing admission of liability not abuse of discretion where insurer presented no reasonable mitigating actions for its delay). Although the employer argues that the penalties are “unduly harsh and burdensome, the employer has failed to establish grounds which afford us a basis to set aside the ALJ’s order.”
IT IS THEREFORE ORDERED that the ALJ’s order dated November 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed March 28, 1997 to the following parties:
Mark Saturday, 4577 Fraser Way, Denver, CO 80239
Kevin Moll, Moll Properties, Inc., 3360 S. Bellaire St., Denver, CO 80222-7205
Special Funds, Attn: Barbara Carter — Interagency Mail
Rebecca Greben, Directors Office, DOWC — Interagency Mail
Kimberly Gielarowski, 90 S. Cascade, Ste. 1490, Colorado Springs, CO 80903
BY: _______________________________