W.C. No. 4-490-474.Industrial Claim Appeals Office.
January 27, 2004.
FINAL ORDER
The claimant and the respondents petitioned separately for review of an order of Administrative Law Judge Stuber (ALJ), which imposed a $10 per day penalty for the respondents’ violation of the Rules of Procedure, Part IX(C)(1), 7 Code Colo. Reg. 1101-3. The respondents also contend the ALJ erred in failing to impose penalties for the claimant’s violation of §8-42-113.5, C.R.S. 2003. We reverse the penalty against the respondents, set aside the order denying the respondents’ request for penalties, and remand the matter for a new order on that issue.
The claimant suffered a compensable back injury on January 17, 2001. On May 21, 2001, the claimant was placed at maximum medical improvement (MMI) and the respondents terminated temporary disability benefits.
In an order dated July 19, 2002, ALJ Mattoon determined the respondents are estopped from relying on the physician’s finding of MMI and thus, ordered the respondents to reinstate temporary disability benefits. The respondents appealed ALJ Mattoon’s order and did not reinstate temporary disability benefits during the appeal. On January 3, 2003, we affirmed ALJ Mattoon’s order. Thereafter, the respondents issued a payment for all past-due temporary total disability benefits.
The claimant obtained seasonal employment between September 21, 2002 and December 16, 2002. The claimant testified that he told his attorney about the employment. However, the attorney did not report the seasonal wages to the respondents until the attorney received the past due temporary total disability benefits. Upon being informed of the claimant’s receipt of the seasonal wages, the respondents filed a General Admission of Liability which admitted liability for temporary partial disability benefits for the period September 22 through December 15. The Admission also stated that effective February 7, 2003, the claimant’s temporary total disability benefits would be reduced by $150 to recover the overpayment.
Thereafter, the claimant applied for an order imposing penalties against the respondents for unilaterally reducing his temporary total disability benefits to recover the overpayment. Relying on § 8-42-113.5, the respondents contested the penalty request. Further, the respondents argued that § 8-42-113.5
required the claimant promptly to notify them of the seasonal wages. Therefore, the respondents requested an order imposing penalties against the claimant for the reporting delay.
The ALJ determined that § 8-42-113.5 does not encompass wages received from other employment and therefore, imposed no obligation on the claimant to report the seasonal wages. Therefore, the ALJ denied the respondents’ request for penalties. Similarly, the ALJ determined the statute did not authorize the unilateral reduction of temporary total disability benefits to recover overpaid temporary disability benefits based on the claimant’s receipt of wages. Further, the ALJ found that the respondents’ unilateral reduction of temporary total disability benefits commencing February 7, 2003 violated the Rule IX(C)(1)(c) and that the violation was objectively unreasonable. The ALJ’s order dated May 29, 2003, assessed a penalty of $10 per day under § 8-43-304(1), C.R.S. 2003, for the period February 7, 2003 to May 29, 2003.
On review, the respondents renew their contention that the ALJ erred in failing to impose penalties against the claimant. We conclude additional proceedings are necessary concerning this issue.
Section 8-43-304(1) allows the ALJ to impose penalties against a claimant or insurer that violates any provision of the Act for which no penalty has been specifically provided. Where a violation is found, the violator is subject to penalties if the action which resulted in the violation was objectively unreasonable. City Market, Inc. v. Industrial Claim Appeals Office, 68 P.3d 601 (Colo.App. 2003); Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995).
Section 8-42-113.5 is titled “Recovery of Overpayments.” Under § 8-40-201(15.5), C.R.S. 2003, an overpayment is defined as:
“money received by a claimant that exceeds the amount that should have been paid, or which the claimant is not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles.”
Section 8-42-113.5 in pertinent part provides:
“(1) If a claimant has received an award for the payment of disability benefit or a death benefit under articles 40 to 47 of this title and also receives any payment, award, or entitlement to benefits under the federal old-age, survivors, and disability insurance act, an employment-paid retirement benefit plan, or any other plan, program, or source, for which the original disability benefits or death benefit is required to be reduced pursuant to said articles, but which were not reflected in the calculation of such disability benefit or death benefit:
(a) Within twenty calendar days after learning of such payment, award, or entitlement, the claimant, or the legal representative of a claimant who is a minor, shall give written notice of the payment, award, or entitlement to the employer or, if the employer is insured, to the employer’s insurer. If the claimant or legal representative give such notice, any overpayment that resulted from the failure to make the appropriate reduction in the original calculation of such disability benefits or death benefit shall be recovered by the employer or insurer in installments at the same rate as, or a lower rate than, the rate at which the overpayments were made. Such recovery shall reduce the disability benefits or death benefit payable after all other applicable reductions have been made.
(b) If the claimant or legal representative of a claimant who is a minor was receiving benefits in excess of the amounts that should have been paid under articles 40 to 47 of this title and failed to give the notice required by paragraph (a) of this subsection (1), the employer or insurer is authorized to cease all disability or death benefit payments immediately until the overpayments have been recovered in full.
(c) If for any reason recovery of the overpayment as contemplated in paragraph (a)(or(b) of this subsection (1) is not practicable, the employer or insurer is authorized to seek an order for repayment.” (Emphasis added).
The rules of statutory construction requires that we construe the statute to effect its legislative purpose. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). To discern the intent of the General Assembly, we must first examine the language of the statute. Words and phrases must be given their plain and ordinary meaning, unless the result is absurd. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000)
By definition, the term “any payment” does not exclude the receipt of wage payments. See Wolford v. Pinnacol Assurance,
___ P.3d ___ (Colo.App. No. 01CA2415, May 22, 2003) (forfeiture statute, § 8-43-402, is unambiguous; word “any” means “without limitation or restriction,”); McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995) (in the context of permanent and total disability, the term “any wages” means wages over $0). Further, the term “source” is defined merely as a “point of origin” or the point from which something is derived See American Heritage College Dictionary, Third Edition (1993).
Contrary to the ALJ’s determination, we conclude that the wages the claimant received from a third-party employer are a “payment” from a “source,” as contemplated by § 8-42-113.5. Although the statute enumerates certain types of benefits that are encompassed, the statute is written in the disjunctive, such that the terms “payment” and “source” stand independently. See Holliday v. Bestop Inc., 23 P.3d 700, 707 (Colo. 2001) (legislative use of disjunctive “or” demarcates different categories). Moreover, we are not persuaded that the enumeration of certain types of benefits is indicative that the statute was intended to be limited to similar types of benefits. If that were the case, the use of the broad term “any payment” would be unnecessary. Statutes are to be construed in a manner which achieves consistent, harmonious, and sensible effect to all its part . Gonzales v. Advanced Components, 949 P.2d 569 (Colo. 1997); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We also note that the amount of third-party wages a claimant receives, like social security and retirement benefits, would generally be a finite amount, and that an employer or insurer would not ordinarily be privy to the claimant’s receipt of such a payment.
It is undisputed that the claimant’s receipt of wages resulted in an “overpayment” of temporary disability benefits, as defined by § 8-40-201(15.5). Therefore, we agree with the respondents that the statute applies to the claimant’s receipt of seasonal third-party wages here, and the claimant was required by §8-42-113.5(1)(a) to give written notice of those wages to the respondent-insurer within 20 days “after learning of such payment.”
In reaching this conclusion, we note that Rule IX(E), 7 Code Colo. Reg. 1101-2, concerns the modification of temporary disability benefits and provides for a unilateral offset where the claimant receives “social security, disability pension or similar benefits pursuant to statute . . . .” However, the rule was promulgated in 1996, prior to the enactment of § 8-42-113.5. Therefore, we conclude the rule does not purport to interpret §8-42-113.5, which is broader in scope.
Because the ALJ erroneously found that § 8-42-113.5(1)(a) does not encompass the seasonal wages paid to the claimant, the ALJ did not determine if the claimant’s failure to report the seasonal wages before January 2003 was objectively unreasonable. The matter shall therefore be remanded to the ALJ for additional findings and the entry of a new order on that issue.
We reject the respondents’ alternative contention that the ALJ erred in failing to impose penalties under § 8-43-304(1) because the claimant did not supplement his March 28, 2002 interrogatory answers to report the seasonal employment. Admittedly, Rule VIII(E)(3) at 27 (2002), provides that the parties are “under a continuing duty to timely supplement or amend responses to discovery up to the date of the hearing.” However, §8-43-207(1)(e), C.R.S. 2003, provides for the imposition of “sanctions” for failure to “comply with permitted discovery” in accordance with the Rules of Civil Procedure Accordingly, in Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000), the court held that penalties under § 8-43-304(1) were not available because § 8-43-207(1)(e) provides for specific sanctions based on “willful failure to comply with permitted discovery.” Consequently, no penalties could be imposed under §8-43-304(1) for the claimant’s alleged discovery violation. See also Holliday v. Bestop Inc., supra.
II.
Given our construction of § 8-42-113.5, it follows that the ALJ erroneously ordered the respondents to pay penalties under §8-43-304(1). Section 8-42-113.5 covers the third-party wages here, and read as a whole, clearly contemplates the respondents taking unilateral action to recover the overpayment, except where recovery of the overpayment is not practicable, such as where all benefits have been paid and the claim is closed. The exception is not the case here.
As a result of this disposition, we need not address the claimant’s arguments concerning the amount of the penalty and repayment of the withheld benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 29, 2003, is set aside insofar as the ALJ denied the respondents’ request for penalties due to the claimant’s violation of §8-42-113.5 and the matter is remanded to the ALJ for the entry of a new order on this issue.
IT IS FURTHER ORDERED that the orer is reversed insofar as it imposed penalties on the respondents
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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 order were mailed to the parties at the addresses shown below on January 27, 2004 by A. Hurtado.
Dale Scruggs, 4265 Dolphin Circle, Colorado Springs, CO 80918
Corby Young, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandi Goldberg, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
Kat Pennucci, Subsequent Injury Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)