Opinion
W.C. No. 4-648-693.
May 28, 2009.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Krumreich (ALJ) dated January 26, 2009, that denied the respondents' request for assessment of attorney fees and costs against the claimant. We set the order aside and remand for entry of a new order.
A hearing was held before ALJ Broniak on May 2, 2007 on the issues of permanent impairment, overcoming the Division-sponsored independent medical examination (DIME) physician's opinion, and permanent total disability. ALJ Broniak issued an order dated May 13, 2008 denying both the claim for permanent total disability and the claimant's request for conversion to a whole person impairment. The claimant appealed ALJ Broniak's order, which was affirmed by the Panel on October 3, 2008. The claimant appealed the Panel's order and it is presently pending before the Colorado Court of Appeals. While this appeal remained pending the claimant petitioned to reopen the issues of permanent total disability and permanent partial benefits alleging fraud/mistake and seeking a new determination on those issues. The claimant had additionally endorsed for hearing the issues of medical benefits and penalties. However the claimant withdrew the issue of medical benefits because it had been resolved and also withdrew the issue of penalties with prejudice.
ALJ Krumreich determined that under Morrow v. J.J. Maintenance W. C. No. 4-561-243 (August 12, 2005), the claimant's petition to reopen was not ripe since he lacked authority to reopen the award of ALJ Broniak that had not yet become final due to the pendency of the statutory appeal process initiated by the claimant. The respondents argued based on the holding in Morrow that an award of attorney fees under § 8-43-211(2)(d) C.R.S. 2008 is required because the claimant filed an application for hearing on an issue that was not ripe.
We initially note that we agree with ALJ Krumreich that the claimant's application for hearing on a petition to reopen was not ripe while an appeal of the underlying issues of permanent partial benefits and permanent total disability was still pending. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office 964 P.2d 533 (Colo.App. 1997); Morrow v. J.J. Maintenance, supra. In any event the claimant did not appeal the dismissal of his petition to reopen on the grounds that it was not ripe, and therefore ALJ Krumreich's determination on the issue is final. See Wallace v. Industrial Comm'n, 629 P.2d 1091 (Colo.App. 1981).
We additionally note that we are unpersuaded by the claimant's argument that because the ALJ's order does not impose any liability upon the respondents the order cannot be appealed by the respondents because they are not a "claimant" under § 8-43-301(2), C.R.S. 2008. Claimant's reliance upon Bradley v. Industrial Claim Appeals Office 841 P.2d 1071 (Colo.App. 1992) as authority for the respondents' alleged lack of standing to appeal a denial of an award of attorney fees is misplaced. Bradley involved the issue of an attorney lien which did not require the respondent to pay a penalty or benefits; rather, the order constitutes a redistribution of existing benefits. Instead, we view BCW Enterprises, Ltd. v. Industrial Claim Appeals Office as controlling. In BCW the court determined that while neither an employer nor an insurer is a "claimant" as that term is used in the Workers' Compensation Act, nonetheless 8-43-301(2) does not deny an employer or its insurer the right to review an order denying recovery of a penalty.
On appeal, the respondents contend that ALJ Krumreich erred in denying respondents' request for attorney fees pursuant to § 8-43-211(2)(d) where the claimant had requested a hearing on issues which were not ripe for adjudication at the time such request was made. Section 8-43-211(2)(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.
ALJ Krumreich interpreted § 8-43-211(2)(d) as meaning that if there are at least one or more "issues" that are ripe for hearing, even though there may be other issues that are not ripe, then an award of attorney fees and costs is not permissible. Therefore, ALJ Krumreich determined that because the issues of medical benefits and penalties endorsed on the application for hearing were ripe that an award of attorney fees and costs were not permissible. ALJ Krumreich reasoned that the withdrawal of the issue of medical benefits because it had been resolved and the withdrawal of the issue of penalties did not affect the status of the issues being ripe.
In construing a statute, we must determine and give effect to the intent of the General Assembly. We first resort to the statutory language, giving effect to the plain and ordinary meaning of the words used, and, as part of that task, we refrain from reading nonexistent provisions into it. Berg v. Industrial Claim Appeals Office, 128 P.3d 270, 273 (Colo.App. 2005). We do not agree with the interpretation that if among the issues set for hearing there is at least one ripe for hearing, the assessment of attorney fees is impermissible. We read the plain language of § 8-43-211(2)(d) as requiring an assessment of attorney fees and costs if a party sets a hearing on any issue that is not ripe for adjudication.
We view this interpretation as consistent with BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, in which the court noted that matters "must be independently ripe for determination or the party bringing them will be subject to sanctions under § 8-43-211(2)(d)." BCW Enterprises, Ltd., 964 P.2d at 538. Moreover, in Morrow v. J.J. Maintenance W.C. No. 4-561-243 (April 4, 2005), the Panel noted that the plain language of § 8-43-211(2)(d) reflected an intent to sanction parties who invoke the administrative adjudication process, thereby imposing expense on opposing parties, before an issue is legally postured for an order. Such an interpretation is consistent with the legislative declaration which calls for the quick and efficient delivery of benefits, at a reasonable cost to employers, "without the necessity of any litigation." Section 8-40-102(1), C.R.S. 2008. The threat of punishment for indiscriminately endorsing issues that are not ripe with issues that are ripe for determination promotes the efficient delivery of benefits at a reasonable cost to employers. Therefore, we remand this matter for a determination of the attorney fees and costs to be awarded to the respondents as a penalty under § 8-43-211(2)(d).
IT IS THEREFORE ORDERED that the ALJ's order issued January 26, 2009 is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
PATRICK YOUNGS, AURORA, CO, (Claimant).
WHITE MOVING STORAGE, INC., DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS TINA AICHELE, DENVER, CO, (Other Party).