2012 COA 30
Colo. Ct. App.2012Background
- Claimant suffered deflated breast implant from a 2008 industrial injury with replacement in 2009.
- ATP recommended a second breast reconstruction on March 31, 2010.
- Employer denied the proposed surgery as cosmetic and not medically required, issuing the denial April 1, 2010.
- Employer did not obtain a medical review by another physician by April 6, 2010.
- Claimant sought a hearing on authorization on June 7, 2010; ALJ ruled in claimant’s favor on October 7, 2010, determining a medical review was required under Rule 16-10(B).
- ALJ imposed a $500 penalty for a one-time violation; Panel affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 16-10(B) violation is continuing or one-time | Crowell argues violation lasted 184 days. | Employer contends violation was a one-time act. | Violation is continuing; daily penalties may apply on remand. |
| Appropriate penalty duration and rate for continuing violation | Penalty should accrue daily from April 6, 2010 to October 7, 2010. | Penalty should be limited to a single event. | Remand for recalculation of penalty on a continuing-violation basis and imposition of daily rate. |
| Authority to impose daily penalties and statutory range | Daily penalties permissible under §8-43-305 and related rules. | Penalties within statutory range; discretion to ALJ. | Daily penalty authorized for continuing violation; remand for amount within appropriate range. |
Key Cases Cited
- Spracklin v. Indus. Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002) (purpose of §8-43-305 to address ongoing conduct; daily penalties when continuing)
- Kennedy v. Indus. Claim Appeals Office, 100 P.3d 949 (Colo. App. 2004) (one-time violation context; distinguishing purport of continuing violations)
- In re Marriage of Webb, 284 P.3d 107 (Colo. App. 2011) (contempt context; one-time violations cannot be purged)
- Toth v. Pueblo Sch. Dist. No. 70, 924 P.2d 1094 (Colo. App. 1996) (mandates daily penalties for continuing violations; cure allowed via delay to act)
- Associated Bus. Prods. v. Indus. Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005) (penalty amount within discretion; continuing-violation framework)
- Pena v. Indus. Claim Appeals Office, 117 P.3d 84 (Colo. App. 2004) (examples of daily penalties for failure to provide treatment)
- Human Res. Co. v. Indus. Claim Appeals Office, 984 P.2d 1194 (Colo. App. 1999) (penalty for failure to timely file admission; continuing-violation reasoning)
- Diversified Veterans Corporate Ctr. v. Hewuse, 942 P.2d 1312 (Colo. App. 1997) (examples of daily penalties for failure to provide information)
- EZ Bldg. Components Mfg., LLC v. Indus. Claim Appeals Office, 74 P.3d 516 (Colo. App. 2003) (shall as mandatory concept in continuing-violation context)
- Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo. App. 1995) (statutory interpretation of mandatory terms)