Opinion
W.C. No. 4-712-019.
September 10, 2008.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 6, 2008, that denied the respondent's request for assessment of a penalty against the claimant and denied the respondent's request for assessment of attorney fees against the claimant. We affirm.
The claimant sustained an admitted injury and eventually requested a Division-sponsored independent medical examination (DIME). In her DIME application, the claimant stated:
COMPETENT, QUALIFIED SPINAL SURGEON (i.e. orthopedic or neurosurgeon whose practice emphasizes the utilization of invasive procedures, when appropriate, to treat spinal pathology) or, if none, a NEUROLOGIST to determine Nature and extent of a neurological damage therefrom.
The Division of Workers' Compensation (DOWC) designated a DIME panel of physicians to serve in claimant's claim. The claimant failed to strike one of the physicians from the selected panel and an orthopedic physician was selected.
The claimant filed an application for hearing regarding the propriety of the DIME panel selection and physician specialties. The ALJ found that the issue raised by the claimant in her application for hearing was frivolous and groundless. The ALJ dismissed the claimant's application for hearing for lack of jurisdiction. In addition, the ALJ dismissed the respondent's request for attorney fees finding that the question of jurisdiction, even if frivolous and groundless, nonetheless was ripe when the claimant filed her application for hearing. Further, the ALJ found there was no persuasive evidence showing that, by filing her application for hearing the claimant violated any provision of the Act or refused to obey any lawful order. The ALJ dismissed the respondent's request for imposition of penalties under § 8-43-304(1) C.R.S. 2008.
I.
The respondent first contends that the ALJ erred in not assessing attorney fees against the claimant for filing an application for hearing on issues that were not ripe. We are not persuaded that the ALJ erred.
Section 8-43-211(1)(d) provides as follows: "If any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting."
The term "ripe for adjudication" is not defined by the statute. However, in Olivas-Soto v. Industrial Claim Appeals Office 143 P.3d 1178 (Colo.App. 2006) the court noted that generally ripeness tests whether an issue is real, immediate, and fit for adjudication. Under that doctrine, adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury, which may never occur. In Olivas-Soto, the court agreed with the Panel that the issue of permanent total disability (PTD) benefits was legally ripe for adjudication when claimant filed his first application for hearing. The final admission of liability and the DIME placing claimant at MMI removed any legal impediment to a determination of his eligibility for PTD benefits, and, as the ALJ recognized, claimant's subsequent challenge to the DIME posed no such impediment, at least not until claimant might succeed in overcoming the DIME, an outcome never achieved. In Olivas-Soto, the Panel had discussed the meaning of the term "ripe for hearing" and noted that the term refers to a disputed issue concerning which there is no legal impediment to immediate adjudication. Olivas-Soto v. Genesis Consolidated Services, W. C. No. 4-518-876 (November 02, 2005).
Here the respondent contends that at the time the claimant filed the application there was no real, immediate or issue fit for adjudication between the claimant and the respondent. The respondent argues that it has no rulemaking authority concerning the selection of a DIME physician and has no control over the DIME panel selection process and therefore the respondent could not provide any relief to the claimant. The respondent argues that the claimant's counsel, because of prior ALJ rulings against counsel for the claimant on the same issue, knew in advance that the ALJ lacked jurisdiction to hear the claimant's challenge to the propriety of the DIME panel selection, which jurisdiction the respondent contends is vested with the district courts.
However, in our view the respondent's argument goes to the issue of whether the claimant's application for hearing was frivolous and groundless not whether the issue was ripe for determination. The Workers' Compensation Act formerly provided for the assessment of attorney fees in frivolous actions. Here the ALJ found that the claimant's application for hearing was frivolous and groundless and the claimant's actions do appear to fit within the definition of former § 8-43-216(1) which provided for the award of attorney fees and costs for pursuing a substantially frivolous, groundless or vexatious claim. However, that section was repealed effective March 1, 1996. Colo. Sess. Law 1991, ch. 219, § 8-43-216(1) at 1321. We disagree with the respondent's argument that any claim or defense that is frivolous must necessarily lack ripeness. The two concepts are distinct and a frivolous claim may nonetheless be ripe for adjudication.
In our view, this resolution is consistent with BCW Enterprises, Ltd. v. Industrial Claim Appeals Office 964 P.2d 533 (Colo.App. 1997) in which the court held that a request for penalties predicated on a claim that an appeal had been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination. In BCW the claimant's attorney was found liable for attorney fees under § 8-43-211(2)(d). The claimant's attorney filed an application for hearing seeking penalties against the respondents for filing a "bad faith appeal" before the appeal was resolved. The court in BCW noted the respondents' appeal was ultimately successful, and concluded that a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of the appeal before it becomes ripe for determination. Id. at 538. Thus, the court was persuaded that the reasonableness of the insurer's appeal could not be meaningfully adjudicated until the appeal was finally resolved and, therefore, the penalty issue was not "ripe" when the application for hearing was filed. In contrast, here there is no such legal impediment to the immediate and meaningful adjudication of the ALJ's jurisdiction over the claimant's challenge to the DIME panel.
The respondent also argues that because the claimant did not attend the examination with the DIME physician that the DIME process was incomplete and any claim related to the DIME would not be ripe until the DIME process ended. The respondent argues that because the selected DIME physician may in the future express an opinion that gives the claimant the relief she wants a hearing may never be necessary. The respondent further argues that this situation is similar to BCW where the completion of the appellate process was found to render the hearing application possibly moot.
However, this particular argument was not raised by the respondent before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). See Respondent's Response to the Claimant's Position Statement.
In any event, even were we to resolve this matter we reject the respondent's argument. The Workers' Compensation Rules of Procedure provide that disputes concerning the DIME process that arise in individual cases that cannot be resolved by agreement of the parties, may be presented to an administrative law judge for resolution following a hearing. W.C. Rule of Procedure 11-1, 7 Code Colo. Reg. 1101-3 at 50. Therefore, because the rules provide a mechanism for resolution of disputes regarding the DIME process before the DIME takes place we see no legal impediment here to immediate adjudication of the dispute concerning the DIME process that ultimately turned on the ALJ's jurisdiction.
II.
The second issue articulated by the respondent is whether the ALJ erred in not assessing a penalty against the claimant for filing a frivolous and groundless hearing application. As noted above, the Workers' Compensation Act previously provided for the award of attorney fees and costs for pursuing a substantially frivolous, groundless or vexatious claim but that section was repealed and such a penalty can no longer be imposed.
However, the respondent also argues in that portion of its brief that its request for penalties against the claimant is based on § 8-43-304(1), the general provision for violations of the Workers' Compensation Act (Act) because the claimant failed to obey a lawful order. The respondent cites a case involving the claimant's counsel and a different claimant, in which a different ALJ determined that an ALJ does not have jurisdiction to consider the propriety of the DIME selection process. See Verdin v. Safeway, W.C. No. 4-682-903, Exhibit K. We note that the respondent also cites two other apparently similar cases. However, these latter two cases apparently were not presented to the ALJ here. Although the ALJ refers to Verdin in his order, there is no reference to the other cases, and they do not appear in the exhibits or elsewhere in the record. Finding of Fact ¶ 9 at 4. Accordingly, we will confine our analysis to Verdin, and have no basis for addressing the other cases.
As noted by the ALJ, the claimant's counsel in Verdin raised the identical issue as in the present claim against the same employer. In Verdin ALJ Cannici entered an order striking the claimant's application for hearing, determining that the claimant's challenge to the DOWC's selection of the DIME physician was not a matter arising under the Act. ALJ Cannici entered his order on November 2, 2006. Here, the claimant's counsel filed the application for hearing raising the identical issue on August 13, 2007.
The ALJ found no persuasive evidence showing that by filing her application for hearing the claimant failed, neglected or refused to obey any lawful order. The ALJ concluded that the respondent had failed to prove by a preponderance of the evidence that the claimant should be penalized for filing her application for hearing and therefore dismissed the request for assessment of a penalty against the claimant.
In reviewing the ALJ's order refusing to impose penalties, we are bound by his factual findings if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
We do not read ALJ Cannici's order as prohibiting the claimant in this case from filing an application for hearing on the issue of the propriety of the DIME panel selection. Neither do we read ALJ Cannici's order as precluding claimant's counsel from filing similar applications for hearing while representing other claimants. ALJ Cannici's order merely ordered that the application filed by the claimant Verdin was "stricken, without prejudice." Arguably, even the claimant in Verdin would not be subject to penalties for violation of ALJ Cannici's order if she had refiled the same application. In our view, the claimant here simply did not violate ALJ Cannici's order by filing her application for hearing. We therefore perceive no reason to disturb the ALJ's dismissal of the respondent's request for penalties against the claimant.
III.
The claimant contends in her brief in opposition to the petition to review that she is entitled to attorney fees pursuant to § 8-43-301(14) C.R.S. 2008. Section 8-43-301(14) authorizes the imposition of attorney fees and costs against a party litigating an appeal that is not well grounded in fact and law or is not a good faith argument for extension, modification, or reversal of existing law. The claimant argues that the petition to review seeks review of an interlocutory matter because it involves an order denying an award of attorney fees and therefore there was no basis for respondents to seek review of the order. Since in our view the order is reviewable, the request for attorney fees pursuant to § 8-43-301(14), C.R.S. 2008 is not well-founded and we deny the request.
Section 8-43-301(2), C.R.S. 2008, provides that a party may file a petition to review an "order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." Orders, which do not meet one of these criteria, are interlocutory and not subject to immediate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Generally, orders are not final if they do not fully dispose of the issue presented including the amount of benefits to be paid. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Here the order did fully dispose of the issues of penalties against the claimant and payment of attorney fees by the claimant. Therefore, in our opinion, the order is final and reviewable.
The claimant's reliance on Reed v. Industrial Claim Appeals Office 13 P.3d 810 (Colo.App. 2000) is misplaced. In Reed the court noted that Section 8-43-301(2), C.R.S. 2008, provides that a party may file a petition to review an order "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." In Reed, the ALJ refused to impose sanctions for the discovery violations by prohibiting the presentation of the reports that were not timely provided under C.R.C.P. 37. The court determined that the order denying sanctions under C.R.C.P. 37 was not a denial of a penalty for purposes of § 8-43-301(2) because it did not require any payment for violation of an order or refusal to perform a duty. Further, that portion of the order constituted a procedural ruling and, therefore, was not final and appealable. In contrast, here the ALJ denied both penalties and an award of attorney fees, which would have required the payment of a sum of money. Further, the order here was not procedural in nature but rather a final order.
Additionally, the claimant's reliance on American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) is also misplaced. In American Express the ALJ authorized the insurer to depose witnesses in South Carolina on the condition that the insurer pay the expenses of the claimant's attorney in attending the depositions. The court noted that the order did not require the insurer to pay those expenses. Rather, the insurer was given the choice of taking depositions and paying the attorney fees, or paying nothing and foregoing the depositions. The court determined that the order did not impose a "penalty," although the court found the order reviewable in connection with another order entered in the case. Here unlike in American Express the denial of attorney fees was not contingent on some future event nor was it procedural in nature.
The respondent also notes that the court in BCW Enterprises, supra apparently determined that the denial of the respondent's request for attorney fees was a final and reviewable order. We agree with this determination and accordingly deny the claimant's request for attorney fees.
IT IS THEREFORE ORDERED that the ALJ's order issued March 6, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
ALICE RODRIGUEZ, FORT MORGAN, CO, (Claimant).
SAFEWAY STORES, INC., Attn: SUE POLYAKOVICS, DENVER, CO, (Employer).
RICHARD K. BLUNDELL, ESQ., C/O: LAW OFFICES OF RICHARD K. BLUNDELL, GREELEY, CO, (For Claimant).
DOUGLAS THOMAS, ESQ., C/O: THOMAS, POLLART MILLER, LLC, GREENWOOD VILLAGE, CO, (For Respondent).