W.C. No. 4-330-091Industrial Claim Appeals Office.
February 28, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied a request for imposition of penalties under § 8-43-304(1), C.R.S. 2001. We affirm.
The record reflects that on June 11, 2001, the claimant filed an application for hearing listing the issue as “penalties” under § 8-43-304(1) for an alleged “Non-payment after order of 1/24/01.” The matter went to a hearing on September 19, 2001.
On October 22, 2001, the ALJ entered the order under review. The ALJ found that on January 24, 2001, another ALJ entered an order increasing the claimant’s average weekly wage over that previously admitted. Consequently, the claimant was entitled to additional temporary total and temporary partial disability benefits for the period February 7, 1997 to October 6, 1997. The respondent-insurer also admitted liability for permanent partial disability benefits for the period October 7, 1997 to December 10, 2001. The claimant again became entitled to temporary disability benefits commencing June 6, 2001, when he underwent surgery.
Subsequent to the January 24, 2001 order, it was ascertained the respondents owed an additional $3584.53 based on the increased average weekly wage. However, the adjuster concluded the insurer had mistakenly admitted for permanent partial disability benefits at a rate higher than that owed. Further, on February 18, 1998, the insurer had paid a lump sum to the claimant in the amount of $4816.35. Thus, the adjuster testified the insurer had overpaid the claimant and no additional benefits were owed as result of the June 24 order.
The ALJ found the adjuster’s testimony credible. Further, he concluded the testimony created a “rational argument based in law or fact” that the insurer did not act unreasonably in offsetting the overpayment against the increased benefits owed as a result of the January 24 order. Consequently, the ALJ denied the claim for penalties, and reserved for future determination issues not specifically decided in the order.
The claimant filed a timely petition to review and brief in support. However, the claimant failed to designate a transcript of the hearing as part of the record on appeal. Consequently, we must presume the ALJ’s pertinent findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
On review, the claimant appears to raise issues which were not determined by the ALJ’s order. These issues include “whether these back due and past ordered benefits ever have to be paid,” and whether the claimant is entitled to interest. Without the benefit of a transcript, it is impossible to ascertain whether these issues were raised at the time of the hearing. Certainly, they do not appear to have been raised in the claimant’s application for hearing. In any event, the ALJ did not address these issues, and he expressly reserved for future determination issues not resolved in the order. Consequently, these issues are not properly before us at this time.
Insofar as the ALJ declined to impose penalties, there is no basis for setting the order aside. The ALJ applied the correct legal standard in evaluating the respondent-insurer’s conduct. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1992). The determination of whether the insurer’s conduct was reasonable is generally one of fact for determination by the ALJ. Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). Because we must presume the sufficiency of the evidence to support the ALJ’s factual determinations, we are obligated to conclude the record supports the ALJ’s determination that the insurer presented a rational argument in support of its conduct. Thus, the ALJ’s refusal to impose penalties was correct.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 2001, 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. 2001. 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 28, 2002 to the following parties:
Perry Skinner, 711 E. Emerson, Holyoke, CO 80734
D D Farms, Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202
Truck Insurance Exchange, Jackie Slade, Farmers Insurance Exchange, 7535 E. Hampden Ave., #300, Denver, CO 80231
Mark L. Anders, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy