4-257-682 (2003). KEVIN MCOMBER (Order of Remand).
Case Date | September 10, 2003 |
Court | Colorado |
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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