W.C. Nos. 4-374-217, 4-374-219Industrial Claim Appeals Office.
August 11, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ Hopf) which denied his request for temporary total disability benefits, and his request for penalties based on failure to comply with an order of ALJ Gandy. We affirm.
On April 14, 1999, ALJ Gandy entered an order requiring the respondents to commence payment of temporary total disability benefits on September 10, 1998. The respondents timely petitioned to review ALJ Gandy’s order, and we affirmed the order in Selcer v. Total Plumbing, W.C. No. 4-374-217 (June 5, 2000). Our files reflect the respondents sought review of our order by filing a Notice Of Appeal in the Court of Appeals. The respondents’ appeal to the court is pending.
In May 1999, the claimant filed an application for hearing seeking an order requiring the respondents to pay temporary total disability benefits commencing April 14, 1999, and penalties for failure to pay the benefits. However, in an order dated October 13, 1999, ALJ Hopf ruled the respondents’ action in appealing ALJ Gandy’s order had the effect of “staying” the respondents’ obligation to comply with the order, and that penalties may “not be imposed upon an insurer for failure to comply with an order during the pendency of a good faith appeal.” Thus, ALJ Hopf denied the claim for temporary disability benefits and penalties.
The claimant filed a timely petition to review. However, the only allegation of error is that the “denial of benefits is not supported by applicable law.” The claimant did not file a brief in support of the petition to review, nor did he provide a transcript of the hearing. Therefore, the effectiveness of our review is limited.
ALJ Hopf correctly ruled that the respondents’ pending appeal has the effect of staying the respondents’ obligation to pay the temporary total disability benefits awarded by ALJ Gandy. Section 8-43-402(2)(a), C.R.S. 1999 (after all appeals have been exhausted insurer shall pay benefits within 30 days of when any benefits are due). Further, the ALJ correctly ruled that respondents are not liable for penalties under § 8-43-304(1), C.R.S. 1999, based on the respondents’ good faith appeal of ALJ Gandy’s order Industrial Commission v. Continental Investment Co., 85 Colo. 475, 277 P. 303 (1929). Because the claimant failed to order a transcript, we must assume the evidence supported ALJ Hopf’s ruling. Nova v. Industrial Commission, 754 P.2d 800 (Colo. 1988). Finally, we perceive no reversible legal error in ALJ Hopf’s order.
IT IS THEREFORE ORDERED that the ALJ Hopf’s order dated October 13, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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. 1999. 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 August 11, 2000 to the following parties:
Nelson W. Selcer, 18721 W. 4th Ave., Golden, CO 80401
Total Plumbing, Inc., 4701 N. Colorado Blvd., Denver, CO 80216-3218
Ginger Cook, Business Insurance Company, 2000 S. Colorado Blvd., #11500, Denver, CO 80222
Jordan S. Levine, Esq., 1490 Lafayette St., #203, Denver, CO 80218 (For Claimant)
Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy