W.C. No. 4-400-162Industrial Claim Appeals Office.
February 26, 2001
FINAL ORDER
Cambridge Integrated Services Group (the insurer) seeks review of an order of Administrative Law Judge Stuber (ALJ) which imposed penalties for the insurer’s failure to comply with an order of the Director of Workers’ Compensation (Director). We modify the ALJ’s order and as modified, affirm.
The claimant suffered a work-related injury on November 6, 1998. The insurer admitted liability for temporary partial and temporary total disability benefits commencing November 7, 1998, and terminating February 28, 1999. No documentation to support the termination of benefits accompanied the admission. The insurer subsequently filed a Final Admission of Liability dated August 14, 1999, which admitted liability for temporary partial disability benefits at the rate of $180.98 per week from November 7, 1998 to January 3, 1999, February 15, 1999 to March 28, 1999, and temporary total disability benefits at the rate of $180.98 per week between April 19, 1999 and May 16, 1999. The only documentation attached to the final admission was a medical report showing the claimant was released to return to regular employment and placed at maximum medical improvement on July 28, 1999.
The Director requested the insurer file an amended admission with documentation supporting the unilateral terminations of temporary disability benefits on January 3, 1999, March 28, 1999, and May 16, 1999, as required by the Rules of Procedure, Part IX(C)(1)(a)-(f), 7 Code Colo. Reg. 1101-3 at 34. This rule allows an insurer to terminate temporary disability benefits without a hearing only where the insurer files an admission of liability together with specified documentation which justifies the termination under § 8-42-105(3), C.R.S. 2000.
The insurer failed to file an amended admission with supporting documentation as requested by the Director. Under these circumstances, the Director determined the insurer’s unilateral terminations of temporary disability benefits on January 3, 1999, March 28, 1999 and May 16, 1999, violated Rule IX(C)(1) and § 8-42-105(3). Therefore, on January 24, 2000, the Director ordered the insurer to pay “TPD and TTD benefits at the admitted rate of $180.98 per week for the continuous period November 11, 1998, to the date of MMI, July 28, 1999″(Emphasis added). The Director also ordered the insurer to show good cause within twenty days of the date of the order, why penalties should not be imposed for the insurer’s failure to comply with the applicable rules and statutes for the termination of temporary disability benefits.
The insurer timely appealed the January order. On May 8, 2000, we affirmed the Director’s order. In so doing, we rejected the insurer’s contention that the Director lacked subject matter jurisdiction to order the payment of temporary disability benefits. See CCIA v. ICAO, ___ P.3d ___ (Colo.App. No. 99CA1624, June 22, 2000), cert. pending; Childers v. Noah’s Ark Whitewater Rafting, W.C. No. 4-392-209 (April 7, 1999). No further appeal was taken.
On June 30, 2000, the Director entered an order imposing penalties under § 8-43-304(1), C.R.S. 2000, for the insurer’s wrongful terminations of temporary disability benefits. The respondents timely appealed the June order. On November 3, 2000, we affirmed the Director’s order. The matter is currently pending before the Court of Appeals i Costco Wholesale v. Shepherd, Colo. App. No. OOCA2013.
In the interim, the insurer filed several amended final admissions of liability which admitted liability for temporary partial disability at various rates, and temporary total disability benefits at the rate of $180.98 per week. No wage records pertinent to calculation of the claimant’s temporary partial disability rate were attached to the admissions.
In May 2000 the claimant applied for a hearing and requested an order imposing penalties for the insurer’s failure to pay benefits in accordance with the Director’s January 2000 order. Based upon the evidence presented at a hearing on August 21, 2000, the ALJ found the insurer failed to pay temporary partial and temporary total disability benefits at the admitted rate of $180.98 per week for the continuous period November 11, 1998 to July 28, 1999, as required by the Director’s order. The ALJ also found the insurer had no reasonable basis for believing that the Director’s order was invalid and that the insurer demonstrated a persistent ” pattern of disregard for the Director’s orders.” Consequently, the ALJ assessed penalties at the maximum rate of $500 per day for the period January 24, 2000 to August 21, 2000. The insurer petitioned for review of the ALJ’s penalty order.
Initially, we reject the claimant’s contention that the insurer’s appeal must be dismissed because the insurer’s petition to review fails to set forth “in detail the particular errors and objections of the petitioner” as required by § 8-43-301(2), C.R.S. 2000. Admittedly, the insurer’s petition to review only sets forth specific allegations of error in an “award of benefits” by the Director. However, the requirement to specify “the particular errors and objections of the petitioner,” is not jurisdictional, and we may elect to consider arguments contained in the insurer’s brief. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989).
The insurer’s petition to review was timely filed and explicitly requested review of the ALJ’s order. Under these circumstances, we conclude the petition to review is sufficient to satisfy the statutory requirements of § 8-43-301(2). Therefore, we elect consider the arguments raised in the insurer’s Brief in Support of the Petition to Review. See Williams v. New Amsterdam Casualty Co., 136 Colo. 458, 319 P.2d 1078 (1957).
The insurer contends the record does not support the ALJ’s finding that its violation of the Director’s order was unreasonable. Alternatively, the insurer argues it is not subject to penalties because the Director lacked jurisdiction to order the reinstatement of temporary disability benefits. They also contend the ALJ’s order violates the double jeopardy clause of the Colorado Constitution because it imposes a second penalty for the same violation that was previously penalized by the Director. Finally, the respondents contend the ALJ’s order violates the Eighth Amendment of the United States Constitution because it imposes an “excessive” fine. We reject these arguments.
Section 8-43-304(1), C.R.S. 2000 authorizes the imposition of penalties up to $500 per day where the insurer unreasonably “fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director.” The reasonableness of the insurer’s actions depends on whether the actions were predicated on a rational argument based in law or fact. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312
(Colo.App. 1997). The question of whether the insurer advanced a rational argument is generally one of fact for the ALJ. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). We must uphold the ALJ’s factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2000 Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
The insurer contends it paid temporary partial disability benefits at variable rates because the claimant’s wages varied from week to week. Therefore, they contend their admissions of liability for variable rates of temporary partial disability benefits were reasonable.
It is undisputed the claimant is entitled to temporary partial disability benefits for the weeks she earned some wages. Nevertheless, the insurer presented no evidence of a rational argument based in law or fact that it was entitled to file successive admissions of liability for “varied” rates of temporary partial disability benefits without supporting documentation as required by Rule IX. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel may not substitute for evidence which is not in the record). Moreover, the Director’s January 2000 order was premised on the insurer’s prior failure to provide documentation supporting any rate changes for alleged periods of temporary partial disability. Consequently, the Director ordered that the temporary partial disability “be paid at the admitted temporary total disability rate. See Rule IX (c)(I)(c) Under these circumstances, the record supports the ALJ’s determination that the insurer failed to present a rational argument based in law or fact that its actions did not violate the Director’s order.
We also reject the insurer’s jurisdictional challenge to the Director’s January 2000 order. A party that has had an opportunity to litigate the question of subject matter jurisdiction may not reopen that question in a collateral attack.” O’Neill v. Simpson, 958 P.2d 1121
(Colo. 1998). The insurer did not appeal our May 2000 order, which held the Director had jurisdiction to order the payment of temporary disability benefits. Thus, the preclusive doctrine of collateral estoppel prevents the insurer from raising the issue on appeal from the ALJ’s order. See Cooper v. ICAO, 998 P.2d 5 (Colo.App. 1999), cert.granted
99SC865, April 24, 2000.
However, in Industrial Commission v. Continental Investment Company, 85 Colo. 475, 277 P. 303 (Colo. 1929), the court declined to construe the predecessor statute to § 8-43-304(1) to allow the imposition of penalties against an employer who failed to pay an award of workers’ compensation benefits pending the resolution of a good faith appeal to vacate or modify the award. The court reasoned that if a party was subject to penalties for violation of an order which is the subject of a good faith appeal, the potential penalties [at a rate of $100 per day] could effectively intimidate an unsuccessful party from seeking appellate review.
Here, there is no finding that the insurer’s appeal of the Director’s January 2000 order was not in good faith. Under these circumstances, the ALJ’s findings compel the conclusion the insurer is not subject to penalties for failing to comply with the Director’s order until May 8, 2000, when the Director’s order became final on appeal. Consequently, the ALJ erred insofar as he imposed penalties prior to May 9, 2000, and we amend the order accordingly.
Next, we lack jurisdiction to resolve a party’s constitutional arguments. Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Therefore, we do not address the insurer’s arguments that the ALJ’s order violates the constitutional protections against double jeopardy and excessive fines. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996).
Finally, we note the claimant has requested costs and attorney fees under § 8-43-301(14), C.R.S. 2000, on grounds the appeal was brought to delay the proceedings. We remand the matter for further proceedings on this issue.
Section 8-43-301(14) provides the signature of an attorney on a petition to review or brief constitutes a certification by the attorney that the petition to review or brief is “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose” such as harassment, delay, or unnecessarily increasing the cost of litigation. Here, the insurer has not had an opportunity to reply to the claimant’s request for attorney fees and costs. Further, the request for attorney fees and costs may involve issues of fact concerning counsel’s motivation for filing the petition to review. We lack statutory authority to resolve issues of fact. Section 8-43-301(8). Consequently, we conclude it is appropriate to remand the matter to the ALJ with instructions to conduct appropriate proceedings, including a hearing if necessary, to resolve the claimant’s request for attorney fees and costs. We should not be understood as expressing any opinion concerning whether or not it is appropriate to award attorney fees and costs in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 2000, is modified to impose penalties at the rate of $500 per day from May 9, 2000 to August 21, 2000.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ for further proceedings on the claimant’s request for costs and attorney fees.
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. 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 February 26, 2001 to the following parties:
Elizabeth Shepherd, 2725 Canossa Dr., Broomfield, CO 80020
Costco Wholesale, 6400 W. 92nd Ave., Westminster, CO 80030
Joe Tracy, Supervisor, Cambridge Integrated Services Group, Inc., P. O. Box 52106, Phoenix, AZ 85072
Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Kathleen Mowry North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy