Opinion
W.C. No. 4-364-555.
November 29, 1999.
ORDER OF REMAND.
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as it denied his claim for penalties based on the employer's failure to report the injury to the workers' compensation insurance carrier (carrier). The claimant contends the ALJ erroneously determined that the employer's duty to report, established by § 8-43-103(1), C.R.S. 1999, is not subject to penalties under § 8-43-304(1), C.R.S. 1999. Because we conclude the ALJ misinterpreted the relevant statutory provisions, we remand for entry of a new order on the issue of penalties.
The relevant facts are not now disputed. The claimant sustained a compensable injury on May 24, 1994, and timely reported the injury to the employer. The claimant missed more than three days of work, but the employer continued to pay the claimant's salary and injury-related medical expenses. The employer did not report the claimant's injury to the Division of Workers' Compensation (Division), nor did it report the injury to its carrier. The claimant filed a claim for benefits on December 24, 1997.
The claimant sought penalties against the employer arguing that its failure to report the injury to the carrier subjects it to penalties of up to $500 per day under § 8-43-304(1). (Tr. p. 3) The respondents defended by arguing that the claim is barred by the statute of limitations.
The ALJ rejected this statute of limitations defense. He determined that the employers's failure to notify the Division of the claimant's injury tolled the statute of limitations pursuant to § 8-43-103(2), C.R.S. 1999. The ALJ also denied the claim for penalties. The ALJ recognized that the employer's duty to report an injury to the carrier, in addition to the Division, was first established in 1992. 1992 Colo. Sess. Laws, ch. 236 at 1825. However, relying on Campion v. Barta Builders, 780 P.2d 23 (Colo.App. 1989), the ALJ concluded that the General Assembly's failure to enact a specific penalty for failure to report an injury to the carrier reveals a legislative intent not to impose such a penalty. Moreover, the ALJ held that the employer's failure to report to the carrier is sufficiently penalized by the tolling the statute of limitations.
On review, the claimant contends that the tolling provision of § 8-43-103(2) does not constitute a "penalty" for purposes of § 8-43-304(1). Therefore, the claimant reasons that the Act does not impose a specific penalty for failure to report the injury, and penalties of $500 per day may be imposed for the employer's failure to report. The respondent argues that the tolling of the statute of limitations is a significant sanction which constitutes a "penalty" for purposes of § 8-43-304(1). We conclude that the statute does not impose a specific penalty based on the employer's failure to report the injury to the carrier, and therefore, the matter must be remanded for consideration of penalties under § 8-43-304(1). We need not reach the question of whether tolling of the statute of limitations constitutes a "penalty" for purposes of § 8-43-304(1) where the employee fails to report the injury to the Division.
Section 8-43-304(1) provides that penalties of up to $500 per day may be imposed on "any employer" who "violates any provision of articles 40 to 47 of this title" if "no penalty has been specifically provided" for the violation. Thus, § 8-43-304(1) is a residual penalty clause which subjects a party to penalties when its violates a specific statutory duty, and the General Assembly has not otherwise specified a penalty for the violation. See Holliday v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA2199, Aug. 19, 1999); Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997); Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995).
Section 8-43-103(1) provides that the employer is required to give notice of an injury for which compensation benefits are payable "to the division and insurance carrier, unless the employer is self-insured, within ten days after the injury." (Emphasis added). Section 8-43-103(2) provides that the statute of limitations is tolled where "the employer has been given notice of an injury and fails, neglects, or refuses to report said injury to the division as required by the provisions of said articles." (Emphasis added).
In considering the relationship of these provisions we apply the rule that words and phrases in a statute should be given their plain and ordinary meanings so as to effect the legislative intent. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). To the extent the legislative intent is unclear we may consider the statute in relation to other provisions of the act. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Indeed, it is presumed that when the General Assembly enacts legislation it does so with full knowledge of existing decisional and statutory law, and a court should not presume that the General Assembly intended to repeal or abrogate existing law absent an express intent to do so. Starr Fireworks, Inc. v. West Adams County Fire Department, 903 P.2d 1202 (Colo.App. 1995). Finally, we should construe the entire statutory scheme in a manner which gives consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., supra.
As the ALJ recognized, the employer's duty to report lost time or permanently impairing injuries to its carrier did not exist before 1992. Consequently, under the prior state of the law, the Court of Appeals concluded that an employer was not subject to a penalty under former § 8-53-102 (2) (penalty for failure timely to admit or deny liability) based on its failure to report an injury to its insurance carrier. See Campion v. Barta Builders, supra. See also United States Fidelity Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
However, in 1992 the General Assembly expressly created a duty for the employer to notify the carrier, in addition to the Division, of qualifying injuries. It is true, as the ALJ stated, that the General Assembly did not simultaneously enact a specific penalty or sanction for the employer's failure to notify the carrier of an injury. However, the legislature was presumably aware of the general penalty provision contained in § 8-43-304(1). Consequently, it must be presumed the General Assembly recognized that creation of a duty for employers to report injuries to carriers would be subject to sanctions under § 8-43-304(1) in the absence of any other penalty.
This conclusion is not contrary to the holding in Campion v. Barta Builders, supra. In Campion, the court recognized that if it were to conclude that the employer was required to report an injury to the carrier the court would be legislating a duty, a time limit for fulfilling the duty, and a penalty for violation of the duty. Id. at 24. By adopting the 1992 amendment to § 8-43-103(1), the General Assembly created a duty for employers to report injuries to carriers, established a ten-day time limit in which the duty must be performed, and implicitly created a penalty for violating the duty by operation of § 8-43-304(1).
Neither are we persuaded by the ALJ's conclusion that the tolling provision of § 8-43-103(2) constitutes a "penalty" for the employer's failure to report the injury to the insurance carrier. The express language of § 8-43-103(1) provides that tolling of the statute of limitations occurs if the employer fails to report the injury to the Division. The statute does not suggest that the statute of limitations would be tolled if the employer reported the injury to the Division but failed to report it to the carrier. Indeed, the tolling provision predates the 1992 amendment, and the tolling provision was not amended to provide that failure to report the injury to the carrier would result in tolling of the statute of limitations. Thus, even if tolling of the statute of limitations may be viewed as a "penalty" for purposes of § 8-43-304(1), that penalty does not apply in circumstances where the employer fails to provide notice to the carrier.
Finally, we conclude that this result is consistent with purposes of the 1992 amendment. Prior to 1992 insured employers could frustrate or delay the claimant's right to receive an admission or denial of liability by failing to report an injury to the insurance carrier. The employer was not subject to liability, and the insurer could not be held responsible since it lacked the requisite knowledge to trigger its responsibility to admit or deny. Campion v. Barta Builders, supra. In our view, the purpose of the 1992 amendment was designed to rectify this situation by subjecting the employer to penalties in cases where it undermines the policies of the Act by failing to notify its insurer of injuries which require the filing of an admission or denial of liability. The legislative history submitted by the employer does not address this matter, and does not contradict our conclusion.
It follows that the case must be remanded to the ALJ for a determination of whether the employer's failure to notify the carrier of the claimant's injury is subject to penalties under § 8-43-304(1). In reaching this result we should not be understood as expressing any opinion concerning the factual issues which determine the applicability of § 8-43-304(1). The ALJ may consider all relevant defenses raised by the employer.
IT IS THEREFORE ORDERED that the ALJ's order dated February 2, 1999, is set aside insofar as it denied the claim for penalties. The matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
Copies of this decision were mailed November 29, 1999 to the following parties:
Michael Montgomery, 4242 S. Richfield Way, Aurora, CO 80013.
Canac Kitchens U.S. Limited, Attn: Kevin Geiger, 7336 S. Alton Way, Englewood, CO 80112.
Canac Kitchens, Attn: Joe Capone, 360 John St., Thornhill, Ontario, Canada.
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority — Interagency Mail.
Michael S. Krieger, Esq., 3333 S. Bannock St., #888, Englewood, CO 80110 (For Claimant).
Raymond F. Callahan, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043, (For Employer).
BY: A. Pendroy