CO Code § 8-43-401 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 43 - Procedure|Part 4 - Enforcement and Penalties|§ 8-43-401. District Attorney or Attorney of Division to Act for Director or Office - Penalties for Failure of Insurer to Pay Benefits

  Upon the request of the director or the industrial claim appeals office, the district attorney of any district or any attorney-at-law employed by the division shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions of articles 40 to 47 of this title, or any award or order of the director, an administrative law judge, or the industrial claim appeals office, or for the recovery of any money due to Pinnacol Assurance, or any penalty provided in said articles, and shall defend in like manner all suits, actions, or proceedings brought against the director, an administrative law judge, or the industrial claim appeals office.      After all appeals have been exhausted or in cases where there have been no appeals, all insurers and self-insured employers shall pay benefits within thirty days after any benefits are due. If any insurer or self-insured employer knowingly delays payment of medical benefits for more than thirty days or knowingly stops payments, such insurer or self-insured employer shall pay a penalty of eight percent of the amount of wrongfully withheld benefits; except that no penalty is due if the insurer or self-insured employer proves that the delay was the result of excusable neglect. If any insurer or self-insured employer willfully withholds permanent partial disability benefits within thirty days of when due, the insurer or self-insured employer shall pay a penalty to the division of ten percent of the amount of such benefits due. The penalties shall be apportioned, in whole or part, at the discretion of the director or administrative law judge, among the aggrieved party, the medical services provider, and the workers' compensation cash fund created in section 8-44-112 (7)(a).    All money collected as penalties by the division pursuant to this subsection (2) shall be transmitted to the state treasurer, who shall credit it to the Colorado uninsured employer fund created in section 8-67-105.         History. Source: L. 90: Entire article R&RE, p. 513, § 1, effective July 1. L. 91: Entire section amended, p. 1325, § 40, effective July 1. L. 94: (1) amended, p. 1879, § 14, effective June 1. L. 2002: (1) amended, p. 1883, § 32, effective July 1. L. 2010: (2)(a) amended,(SB 10-012), ch. 287, p. 1340, § 2, effective August 11. L. 2012: (1) amended,(SB 12-110), ch. 158, p. 560, § 3, effective July 1. L. 2017: (2)(b) amended,(HB 17-1119), ch. 317, p. 1706, § 6, effective July 1.    Editor's note:   This section is similar to former § 8-53-128 as it existed prior to 1990.   Cross references:   For Pinnacol Assurance and for the Pinnacol Assurance fund, see §§ 8-45-101 and 8-45-102 .   ANNOTATION   Law reviews. For article, “Recent Colorado Appellate Decisions in Workers' Compensation Cases”, see 25 Colo. Law. 57 (April 1996). For article, “Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law”, see 30 Colo. Law. 129 (July 2001). For article, “Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law”, see 30 Colo. Law. 105 (Aug. 2001). For article, “Update on Colorado Appellate Decisions in Workers' Compensation Law”, see 31 Colo. Law. 119 (Jan. 2002). For article, “Update on Colorado Appellate Decisions In Workers' Compensation Law”, see 32 Colo. Law. 87 (March 2003).   Where specific penalty provision in subsection (2)(a) applies, general penalty provisions in § 8-43-304 (1) do not. Sears v. Penrose Hosp., 942 P.2d 1345 (Colo. App. 1997), overruled in Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001).   Under the rules of statutory construction, the phrase “for which no penalty has been specifically provided” defines “fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director or panel”. The use of the disjunctive conjunction “or” demarcates four different acts within this section that give rise to penalties. Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001) (overruling Sears v. Penrose Hosp., 942 P.2d 1345 (Colo. App. 1997)).   General penalty in § 8-43-304 (1) was applicable to an insurer that refused to provide medically necessary transportation and, thus, refused medical treatment, although no bill for medical benefits was submitted and the insurer did not delay or stop payment of such a bill, which would have invoked the specific penalty set forth in subsection (2)(a). Pena v. Indus. Claim Appeals Office, 117 P.3d 84 (Colo. App. 2004).   If the general assembly intended to create two penalties for the late payment of medical benefits, subsection (2) would have provided that it is in addition to the penalty authorized by § 8-43-304 (1) . Holliday v. Indus. Claim Appeals Office, 997 P.2d 1212 (Colo. App. 1999), vacated and claimant's appeal dismissed, 23 P.3d 700 (Colo. 2001).   A penalty imposed for the willful failure to timely pay benefits may be in addition to a penalty for violation of an order made by the director or panel under § 8-43-304 . Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo. App. 2001).   Deliberate intent is required to trigger penalties under subsection (2)(a). Sears v. Penrose Hosp., 942 P.2d 1345 (Colo. App. 1997).   Term “wrongfully” in subsection (2)(a) implies that the withholding of benefits must be unlawful or unjust before penalties may be assessed. Sears v. Penrose Hosp., 942 P.2d 1345 (Colo. App. 1997); Miller v. Indus. Claim Appeals Office, 49 P.3d 334 (Colo. App. 2001).   A finding that employer acted reasonably under the circumstances precludes a finding of willfulness. Sears v. Penrose Hosp., 942 P.2d 1345 (Colo. App. 1997).   “Wrongful” withholding shown where respondents knew or should have known their conduct was unreasonable, and, as a result, they violated their obligation to provide necessary medical care. Miller v. Indus. Claim Appeals Office, 49 P.3d 334 (Colo. App. 2001).   Claims asserted against the state attorney general must be dismissed where the ground for the claim is that she is charged under Colorado law with enforcing Colorado's statutory provisions governing the business of insurance, including the enforcement of workers' compensation statutes, when in fact she is not responsible for enforcing either insurance or workers' compensation laws and may become involved in prosecuting related matters only at the request of the commissioner of insurance or the director of workers' compensation. Fuller v. Norton, 881 F. Supp. 468 (D. Colo. 1995 ).   There is no practical difference between failure to authorize treatment and failure to pay medical benefits. It is not impossible to assess the penalty provided for in subsection (2)(a) when the dispute involves the failure to authorize treatment. Holliday v. Indus. Claim Appeals Office, 997 P.2d 1212 (Colo. App. 1999), vacated and claimant's appeal dismissed, 23 P.3d 700 (Colo. 2001).