Pena v. Industrial Claim Appeals Office

• Decision Date: 26 May 2005
• Docket Number: No. 03CA0387.,03CA0387.
• Citation: 117 P.3d 84
• Parties: Susan PENA, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Family Dollar Stores, Inc., and Travelers Insurance Company, Respondents.
• Court: Colorado Supreme Court

117 P.3d 84

Susan PENA, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Family Dollar Stores, Inc., and Travelers Insurance Company, Respondents.

No. 03CA0387.

Colorado Court of Appeals, Division II.

November 18, 2004.

As Modified on Denial of Rehearing May 26, 2005.

Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado; Bendinelli Law Office, P.C., Marc F. Bendinelli, Denver, Colorado, for Petitioner.

Ken Salazar, Attorney General, John D. Baird, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Thomas, Pollart & Miller, LLC, Douglas A. Thomas, Greenwood Village, Colorado, for Respondents Family Dollar Stores, Inc. and Travelers Insurance Company.

CARPARELLI, J.

Claimant, Susan Pena, appeals the final order of the Industrial Claim Appeals Office (Panel) reversing the general penalty awarded by the administrative law judge (ALJ) against Family Dollar Stores, Inc., and its insurer, Travelers Insurance Company (collectively, insurer). We set aside the final order of the Panel and remand for reinstatement of the general penalty imposed by the ALJ.

Claimant sustained a compensable ankle injury in 1999. In 2000, the treating physician restricted claimant, who does not drive, from using public transportation to travel to treatment appointments. Insurer filed a general admission of liability for medical and temporary total disability benefits and, consistent with a request from the treating physician, began providing taxi vouchers so claimant could travel to her appointments.

In late 2001, the treating physician wrote a letter stating that claimant continued to need taxi vouchers for essential transportation to medical and physical therapy appointments. Claimant's counsel forwarded the letter to the claims adjuster and requested more vouchers. The claims adjuster requested medical documentation of the continuing need for and medical necessity of vouchers. After receiving correspondence from claimant's counsel stating that claimant was in a wheelchair that insurer had provided, the claims adjuster refused to send additional vouchers.

Claimant applied for a hearing regarding medical benefits and penalties for insurer's denial of care prescribed by the treating physicians.

The ALJ found that insurer's refusal to provide taxi vouchers or any alternative means to enable claimant to attend medical appointments was unreasonable. The ALJ concluded that the failure to provide such transportation was a willful refusal to provide medical treatment and, citing § 8-43-304(1), C.R.S.2004, imposed penalties of $100 per day.

The Panel set aside the award of penalties based on its conclusion that the general penalties under § 8-43-304(1) may not be imposed for insurer's failure to provide the vouchers because § 8-43-401(2)(a), C.R.S.2004, specifically provides a penalty for that conduct. Like the ALJ, the Panel found that claimant failed to prove entitlement to the penalty under the latter provision.

Although we agree with the Panel's conclusion that general penalties under § 8-43-304(1) may only be imposed for violations of the Act when no penalty has been specifically provided, we conclude that § 8-43-401(2)(a) does not specifically provide a penalty for insurer's willful refusal to provide treatment. Thus, we conclude that the general penalty imposed by the ALJ was proper.

I. Section 8-43-304(1)

Claimant contends that the Panel misconstrued § 8-43-304(1) when it concluded that general penalties under this section may not be imposed for acts and omissions contrary to the Act when a penalty has been specifically provided. We perceive no error.

A. Statutory Interpretation

The Panel's interpretation of the Act is a question of law, which we review de novo. People v. Witek, 97 P.3d 240 (Colo.App.2004).

When interpreting statutes, we apply the familiar rules of construction and must determine and give effect to the intent of the General Assembly. Dworkin, Chambers & Williams, P.C. v. Provo, 81 P.3d 1053 (Colo.2003); Jones v. Indus. Claim Appeals Office, 87 P.3d 259 (Colo.App.2004). We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023 (Colo.2004). We read words and phrases in context and construe them according to the rules of grammar and common usage. Section 2-4-101, C.R.S.2004; Bralish v. Indus. Claim Appeals Office, 81 P.3d 1091 (Colo.App.2003). We do not depart from the plain meaning of statutory provisions unless it leads to an absurd result. Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261 (Colo.App.2004).

When a statute is fairly susceptible of more than one interpretation, it is ambiguous, and we may look to the object the General Assembly sought to attain, the circumstances under which the statute was enacted, legislative history, common law, former statutory provisions, laws on the same or similar subjects, the consequences of a particular construction, the administrative construction of the statute, and any legislative declaration of purpose. Section 2-4-203, C.R.S.2004; see Midboe v. Indus. Claim Appeals Office, 88 P.3d 643 (Colo.App.2003). Here, we note that there is no pertinent legislative history for § 8-43-304(1). Dworkin, Chambers & Williams, P.C. v. Provo, supra.

B. The Limiting Clause

As relevant here, § 8-43-304(1) authorizes the imposition of penalties of up to $500 per day on

[a]ny employer or insurer, or any officer or agent of either, or any employee, or any other person who violates any provision of articles 40 to 47 of this title, or does any act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel, for which no penalty has been specifically provided, or fails, neglects, or refuses to obey any lawful order made by the director or panel.

(Emphasis added.)

1. Four Categories

This provision plainly identifies four categories of conduct and authorizes the imposition of the described penalties when an employer or insurer: (1) violates any provision of the Act; (2) does any act prohibited by the Act; (3) fails or refuses to perform any duty lawfully mandated within the time prescribed by the director or the Panel; or (4) fails, neglects, or refuses to obey any lawful order of the director or the Panel. See Holliday v. Bestop, Inc., 23 P.3d 700, 706 n. 4 (Colo.2001)("enjoined" means "mandated"); Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo.App.2001)("order" has been broadly defined to encompass virtually every type of affirmative mandate or prescription that can be issued).

However, the description of the third category is followed by the clause, "for which no penalty has been specifically provided" (the limiting clause), and claimant contends that the Panel erred when it concluded that this clause applies to conduct contrary to the Act under the first and second categories. We disagree.

The supreme court has determined that the limiting clause applies to the failure or refusal to perform a duty lawfully enjoined within the time prescribed by the director or the Panel (the third category), but not to the failure, neglect, or refusal to obey a lawful order of the director or the Panel (the fourth category). Holliday v. Bestop, Inc., supra; see also Giddings v. Indus. Claim Appeals Office, supra. Colorado courts have not resolved the question of whether the limiting clause also applies to the first two categories, namely, other acts and omissions that are contrary to the Act. Holliday v. Bestop, Inc., supra, 23 P.3d at 707 n. 6.

2. Grammar, Punctuation, and Common Usage

Claimant contends that the repeated use of the word "or" signals the General Assembly's intention to create four distinct categories. We are not persuaded.

In Bloomer v. Board of County Commissioners, 799 P.2d 942 (Colo.1990), overruled by Bertrand v. Board of County Commissioners, 872 P.2d 223 (Colo.1994), the supreme court concluded that the General Assembly's repeated use of the disjunctive "or" in a series of conditions demarcated separate categories. There, as here, the categories were separated by commas and were not numbered.

Here, the limiting clause itself is set off from the third category by commas and does not create a category. Instead, it modifies one or more categories that precede it. And the relative proximity of the limiting clause to the immediately preceding language does not create a presumption of statutory intent. Section 2-4-214, C.R.S.2004; People v. Lawrence, 55 P.3d 155 (Colo.App.2001), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also Subsequent Injury Fund v. State Comp. Ins. Auth., 793 P.2d 580 (Colo.1990); Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d 579 (Colo.App.1998).

Thus, the rules of grammar, punctuation, and common usage do not provide a clear understanding of the General Assembly's intention. Accordingly, we conclude the provision is ambiguous and consider the object the General Assembly sought to attain, the consequences of the alternative constructions, and the Panel's interpretation.

3. The Object of the Limiting Clause

Claimant contends that the only object of the limiting clause is to prohibit imposition of the general penalty with regard to the third category, failures and refusals to perform duties lawfully enjoined within the time prescribed by the director or the Panel. We disagree.

Section 8-43-218, C.R.S.2004, establishes the authority of the director. Subsection (3) of that statute states that any party who willfully refuses to comply with the claims management efforts of the division is subject to the penalty provisions set forth in § 8-43-304, C.R.S.2004.

Section 8-47-107, C.R.S.2004, grants the director power to adopt reasonable rules and regulations to administer the Act, but it does not give the director, the ALJ, or the Panel...