Opinion
W.C. No. 4-744-728.
November 5, 2008.
FINAL ORDER
The respondents seek review of a supplemental order of the Director of the Division of Workers' Compensation (Director) dated July 25, 2008, that ordered respondents to pay a penalty of $840. We affirm.
The Director made the following pertinent findings of fact. The claimant suffered an industrial injury on November 14, 2007, and the First Report of Injury was filed on December 19, 2007. The respondent was required to either admit or deny liability within twenty days of filing a First Report of Injury. On March 21, 2008, the Director issued an order requiring respondents to file a position statement. Subsequently, on April 21, 2008, the Director issued an order imposing penalties for the respondents' failure to obey the March 21, 2008, order. In response to the April 21, 2008 penalty order, the respondents filed a general admission and a final admission, both certified as mailed on January 22, 2008. However, the Director found the admissions were first received by the Division on April 29, 2008. The Director in the July 25, 2008 supplemental order, under review here, determined that the respondents failed to timely comply with the Director's order of March 21, 2008. The Director imposed a penalty of $40 per day from April 7, 2008 to April 28, 2008, for a total of $840.
I.
The respondents first argue that the general admission and final admission were both filed prior to the Director's penalty order and, therefore, the order is not supported by the facts. We are not persuaded by this argument.
Because the issue is factual in nature, we must uphold the Director's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the Director's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The respondents contend that two letters from the claims management unit of the Division of Workers' Compensation, both dated May 12, 2008, indicate that an admission was filed on January 22, 2008. Exhibit C. However, the Director was not persuaded by this argument. In our opinion, the exhibits can be reasonably read as merely identifying the dates placed on the admissions rather than as indicating the dates the admissions were received by the Division of Workers' Compensation.
Further, the respondents' assertion notwithstanding, we note that the date stamps of the Division of Workers' Compensation indicate that the two admissions were both received on April 29, 2008. Although there was conflicting evidence, the Director's findings regarding whether the admissions were timely filed are supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
II.
The respondents next contend that Director's order is inappropriate as a matter of law and fact. The respondents argue that § 8-43-203(2)(a) C.R.S. 2008 provides a penalty of up to one day's compensation for each day's failure to timely admit or deny. The respondents argue that since the issue is whether they failed to timely admit or deny, any penalty should be imposed under § 8-43-203(2)(a) rather than under the general penalty statute in § 8-43-304, C.R.S. 2008.
Section 8-43-304 provides that an insurer who violates any provision of the Workers' Compensation Act or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the Director for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the Director shall be punished by a fine of not more than five hundred dollars per day for each such offense, seventy-five percent payable to the aggrieved party and twenty-five percent to the subsequent injury fund. In contrast § 8-43-203(2)(a) provides that if an insurer fails to timely admit or deny the insurer may become liable to the claimant for up to one day's compensation for each day's failure to so admit or deny fifty percent of any penalty to be paid to the subsequent injury fund and fifty percent to the claimant.
Here, the insurer's conduct warranting a penalty was its disregard of the Director's lawful order directing it to file a position statement. In our view, the issue is controlled by Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001), in which the court held that penalties under the statute for failing, neglecting, or refusing to obey a lawful order of the Director or panel are available whether or not other penalties are elsewhere specifically provided. Therefore we perceive no error on the part of the Director for imposing penalties under § 8-43-304.
III.
The respondents next contend that the Director erred in imposing penalties because the claim was closed before the Director's initial order was issued and therefore the Director's order is moot. The respondents argue that the Final Admission dated January 22, 2008 was not objected to by the claimant. Therefore, the respondents contend the claim closed on February 21, 2008 by operation of law and because the Director's initial order was not issued until a month after the claim had closed the order was moot. We are not persuaded.
Section 8-43-203, C.R.S. 2008 provides that a position statement either admitting or contesting liability is required to be filed within twenty days after a first report is filed with the Division. Within his authority, the Director promulgated Rule 5-2-C, which provides that the "insurer shall state whether liability is admitted or contested within 20 days after the date the employer's First Report of Injury is filed with the Division." Procedural rules have the force and effect of law. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992); Avila v. Universal Forest Products W. C. No. 4-477-247 (August 25, 2004). As noted above the Director found that the respondents, by failing to file timely a position statement with the Division of Workers' Compensation, did not timely comply with the obligation to admit or deny liability.
Here the insurer failed, neglected, or refused to obey a lawful order made by the Director. The Director enforces and administers the Workers' Compensation Act. See § 8-47-101(2), C.R.S. 2008; Colo. Dep't of Labor Employment v. Esser, 30 P.3d 189 (Colo. 2001). Section 8-43-201 C.R.S. 2008, expressly affords the Director original jurisdiction to "hear and decide all matters" arising under the Act. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). In our view, the insurer had an independent duty to comply with the Director's order regardless of whether the claimant was sent a timely admission and was satisfied with the admission. Such interpretation would further the legislative intent of Act to assure quick and efficient delivery of disability and medical benefits to injured workers at reasonable cost, without litigation. Section 8-40-102 C.R.S. 2008. Here, the imposition of penalties under § 8-43-304 for the disobedience of the Director's order deters misconduct and compels compliance with lawful orders. See Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo.App. 2001).
In addition, we have determined that the Director found with record support that, despite the January 22, 2008 certificate of mailing on the admissions, the admissions were not filed with Division until April 29, 2008. We are not persuaded that the record compels a finding that the claimant was notified earlier than the date the admissions were filed with the Division. In this regard we note that the Director entered no finding that the claimant had received the admissions at an early date, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Therefore, we are not in a position to accept the respondents' assertion on appeal that the claimant received the admission in January and failed to object to the admission.
IT IS THEREFORE ORDERED that the Director's order dated July 25, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
JOSHUA CORTRIGHT, TAMPA, FL, (Claimant).
INSURANCE CO OF THE STATE OF PENNSYLVANIA, Attn: WENDY MOONEN, C/O: HALLMARK MANAGEMENT, OKLAHOMA CITY, OK, (Insurer).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: JAMES B FAIRBANKS, ESQ, DENVER, CO, (For Respondents).
INS CO OF STATE OF PENNSYLVANIA, Attn: REGULATORY INFORMATION SERVICES, NEW YORK, NY, (Other Party).