4-257-682 (2003). KEVIN MCOMBER (Order of Remand).

Case Date:September 10, 2003
Colorado Workers Compensation 2003. 4-257-682 (2003). KEVIN MCOMBER (Order of Remand) INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF KEVIN MCOMBER, Claimant, v. ASSOCIATED BUSINESS PRODUCTS, Employer, and LIBERTY MUTUAL GROUP, Insurer, Respondents.W. C. No. 4-257-682ORDER OF REMAND The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied the claimant's request for imposition of penalties pursuant to § 8-43-304(1), C.R.S. 2002. The claimant contends that because the respondents violated a rule of procedure the ALJ erred in holding that penalties could only be assessed under § 8-43-401(2)(b), C.R.S. 2002 (8 percent penalty for willfully and wrongfully delaying or stopping medical payments). We set the order aside and remand for entry of a new order. The ALJ found that claimant carries a cell phone which is medically necessary considering his condition. In the past, the insurer has paid cell phone charges without objection, although it did so on an irregular basis and not within the time limits established by the applicable rules. (Finding of Fact 6). On October 2, 2002, October 23, 2002, and November 15, 2002, the claimant submitted requests for payment for three periods of cell phone charges. The ALJ found the insurer did not pay any of the cell phone charges until January 28, 2003, nor did it file a written notice contesting payment for these charges in accordance with Rule of Procedure XIV (K), 7 Code Colo. Reg., 1101-3 at 81-83. The claimant requested imposition of penalties under § 8-43-304(1) based on the respondent-insurer's failure to comply with the "notice of contest" provisions of Rule XVI (K). In this regard, the ALJ found that the evidence demonstrated the insurer's failure to pay the cell phone charges in a timely fashion was "willful and wanton." Specifically, the ALJ found the insurer's conduct demonstrated "a pattern of delay" and that the respondents "will do things whenever they get around to doing them, regardless of the Division rules or the provisions of the Workers' Compensation Act." (Finding of Fact 19). Nevertheless, the ALJ denied the request for imposition of penalties based on the insurer's violations of Rule XVI (K). The ALJ ruled that because the claims for penalties based on failure to pay the cell phone charges "concern non-payment of medical bills," the applicable...

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