Opinion
W.C. No. 4-264-104.
November 18, 1999.
FINAL ORDER.
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied his claim for expert witness fees. The claimant argues that § 8-43-315, C.R.S. 1999, does not require the issuance of a subpoena as a prerequisite to the assessment of witness fees. Further, the claimant contends the evidence establishes that the respondents perpetrated a "sham" defense justifying the imposition of fees. We affirm.
On August 12, 1997, this claim was scheduled for a hearing on the issues of temporary total disability benefits commencing May 13, 1996, and permanent total disability benefits. At the hearing, the respondents moved to strike the issue of permanent total disability benefits on the theory that the issue was premature because the claimant was seeking temporary disability benefits. Ultimately, the motion was granted and a hearing was held on the issue of temporary disability benefits.
At the time of the hearing the claimant had arranged for the appearance of several expert witnesses whom she expected to testify concerning the issue of permanent total disability benefits. The claimant did not subpoena these witnesses, and they appeared voluntarily. Nevertheless, the claimant was required to pay witness fees in excess of $1,000.
Subsequently, the matter proceeded to a hearing on the claimant's contention that the respondents are liable for witness fees due to the experts' appearance on August 12. However, the ALJ concluded that the claimant failed to prove that the witnesses in question were under subpoena. The ALJ also concluded that § 8-43-315 requires a witness to be subpoenaed, and therefore, he denied the claim for witness fees. Further, the ALJ determined that § 8-43-315 requires the "necessity to subpoena the witness" be attributable to the respondents' action in raising a "sham" defense. The ALJ concluded that there was no necessity to subpoena experts to the August 12 hearing since they appeared voluntarily. Finally, the ALJ determined that the respondents' August 12 motion to strike the issue of permanent total disability was supported by law and fact. Consequently, the ALJ determined that, although respondents' counsel was "discourteous" in failing to disclose his intent to file the motion to strike, the conduct did not rise to the level of a "sham."
On review, the claimant first contends the ALJ erred in concluding that the assessment of witness fees under § 8-43-315 requires a witness to be subpoenaed. The claimant asserts that issuance of a subpoena is not "dispositive." Rather, the claimant argues it is the necessity for the appearance of the witness which triggers the right to witness fees, and witness fees are appropriate where, as here, opposing counsel has acted in "bad faith." We find no error.
Section 8-43-315 provides as follows:
The director has the discretion to assess the cost of attendance and mileage of witnesses subpoenaed by either party to any proceeding against the other party to such proceeding when, in the director's judgment, the necessity of subpoenaing such witness arises out of the raising of any incompetent, irrelevant, or sham issues by such other party. (Emphasis added).
In interpreting this provision we apply the rule that statutory words and phrases should be given their plain and ordinary meanings unless an absurdity results. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Further, we recognize that "administrative tribunals which adjudicate workers' compensation claims are created by statute, and the jurisdiction, powers, duties, and authority of these tribunals are limited to that provided by statute." Lewis v. Scientific Supply Co., Inc., 897 P.2d 905, 908 (Colo.App. 1995).
Here, the language of this statute plainly states that exercise of discretion to assess witness fees is proper only where the witness was "subpoenaed" to the hearing. In fact, the statute twice refers to the requirement of a subpoena. The statute makes no allowance for witness fees in cases where a witness appears voluntarily, and we decline to legislate such a result. Cf. Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo.App. 1994) (award of attorney fees inappropriate where no statutory authority for the award). Although this result may occasionally impose a degree of inconvenience and expense on the parties, counsel may protect his or her client by issuing a subpoena in cases where there is a risk of incurring substantial expert witness fees because the opposing party has improperly advanced an issue.
Further, we agree with the respondents that this conclusion is mandated by the case law. In Maryland Casualty Co. v. Industrial Commission, 116 Colo. 58, 178 P.2d 426 (1947), the claimant relied on the predecessor to § 8-43-315 in seeking expenses for his own appearance at a hearing. In addition to finding the award of witness fees was improper because the respondents did not raise any sham issues, the court stated, "Besides, claimant was not subpoenaed, nor was he a `witness' in the meaning of any statute or rules of decision having to do with costs." Thus, our Supreme Court has interpreted the statute as requiring that a witness be subpoenaed as a prerequisite to an assessment of witness fees, and we may not depart from this established precedent. See also, Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961).
The General Assembly is presumably aware of the judicial interpretation given the predecessors to § 8-43-315. Nevertheless, the legislature has recodified the statute without substantially amending the relevant language. Therefore, we presume the legislature has rendered implicit approval of the judicial interpretation of the statute given in Maryland Casualty Co. See Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994).
The claimant does not dispute that the witnesses in question were not subpoenaed to the August 12 hearing. Consequently, § 8-43-315 does not permit an award of witness fees based on the appearance of the witnesses. In light of this conclusion we need not consider the claimant's argument that the ALJ erred in finding that the respondents did not raise a sham issue at the August 12 hearing.
IT IS THEREFORE ORDERED that the ALJ's order dated March 29, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain
_____________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed November 18, 1999 to the following parties:
Deborah Compton, 665 Quebec St., Colorado Springs, CO 80911.
Western Publishing Company, 10101 Science Dr., Sturtevant, WI 53177-1757.
Liberty Mutual Insurance Company, Attn: Linda Stithem, 13111 E. Briarwood Ave., #100, Englewood, CO 80112.
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant).
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents).
BY: A. Pendroy