Opinion
W.C. No. 4-382-047
March 13, 2002
FINAL ORDER
The claimant's attorney (attorney) seeks review of orders of the Director of the Division of Workers' Compensation (Director) dated October 29, 2001 and October 30, 2001, which required the attorney to pay costs and attorney fees. We affirm.
The claimant filed a claim for workers' compensation alleging an injury on May 11, 1998. On October 2, 2000, a prehearing administrative law judge (PALJ) entered an order which required the claimant to respond to interrogatories from the respondents. The claimant filed a petition to review the PALJ's order.
Relying on Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998), we concluded the disputed discovery order was interlocutory because it was subject to direct review by an administrative law judge (ALJ) at a subsequent hearing. Therefore, in an order issued on December 13, 2000, we dismissed the claimant's petition to review without prejudice. The attorney filed a notice of appeal from our order. On January 29, 2001, the Court of Appeals concluded our order was not subject to immediate appeal, and therefore dismissed the appeal without prejudice. The attorney then petitioned for writ of certiorari which was denied on May 21, 2001.
On June 6. 2001, the respondents filed a motion for costs and attorney fees under § 8-43-301(14), C.R.S. 2001. The respondents alleged the attorney's repeated appeals of the PALJ's discovery order were frivolous and groundless. On August 21, 2001, the respondents filed an application for hearing with the Division of Administrative Hearings (DOAH).
Also in June 2001, the attorney applied for a hearing before an ALJ to challenge the PALJ's order compelling discovery. A hearing was held before ALJ Felter on September 13, 2001. On December 14, 2001, ALJ Felter upheld the October 2 discovery order. The attorney asserted he timely appealed the December 14 order.
In the interim, and prior to a hearing on the issue being conducted by the DOAH, the respondents also filed a motion for attorney fees with the Director. The Director determined there was no material issue in dispute and that the respondents were entitled to judgment as a matter of law. Based upon the language in § 8-43-207.5, C.R.S. 2001, and Industrial Claim Appeals Office v. Orth, supra, the Director determined the attorney's petition to review the disputed discovery order was not warranted by existing law and did not present a good faith argument for the extension, modification, or reversal of existing law. Therefore, the Director ordered the attorney to pay the costs and attorney fees incurred by the respondents to respond to the repeated appeals of the discovery order. The attorney timely appealed the Director's orders.
Initially we note the attorney has filed a motion to consolidate our review of the Director's orders and ALJ Felter's December 14 order, on grounds the appeals involve "a single controversy regarding discovery." However, the attorney's petition to review the December 14 order has not yet been certified to us for review. Section 8-43-301(7), C.R.S. 2001. Further, the petition to review the Director's orders was received on January 28, 2002. Pursuant to § 8-43-301(8), C.R.S. 2001, we are required to complete our review of the Director's orders within sixty days of the date the record is received. We lack authority to extend the time for entry of our order except where settlement negotiations are pending. Section 8-43-301(9), C.R.S. 2001. Consequently, we must deny the attorney's motion to consolidate.
I.
In contesting the Director's orders, the attorney first contends the Director abused her discretion by granting the motion for attorney fees before ALJ Felter adjudicated the underlying discovery issue. We disagree.
Section 8-43-301(14) provides the signature of an attorney on a petition to review or brief constitutes a certification by the attorney that the petition to review or brief is "well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose" such as harassment, delay, or unnecessarily increasing the cost of litigation. The statute also provides that the Director may award reasonable attorney fees and costs where a petition is signed in violation subsection (14).
Neither we nor the Director dispute the attorney's right to contest the propriety of the PALJ's order. However, the issue presented to the Director was whether it was groundless and frivolous for the attorney to seek review of the order by appealing the order under § 8-43-301(2) and (10), C.R.S. 2001. Consequently, ALJ Felter's adjudication of the underlying discovery issue was not a prerequisite to the Director's resolution of the respondents' motion for attorney fees.
II.
Next, the attorney next contends the Director abused her discretion in exercising jurisdiction over the respondents' motion for attorney fees. The attorney's argument is based on Public Service v. Miller, 135 Colo. 575, 313 P.2d 998(Colo. 1957), which held a court that first acquires jurisdiction over the parties and the subject matter of a dispute has exclusive jurisdiction over the case and any action of concurrent jurisdiction is precluded. In Miller the court determined jurisdiction attached when a complaint was filed and the parties made a general appearance. See also M G Engines v. Mroch, ___ Colo. App. ___, 631 P.2d 1177 (Colo.App. 1981) (district court which entered temporary retraining order had exclusive jurisdiction of dissolution of marriage action).
Under the Colorado Workers' Compensation Act (Act), the Director and ALJs have concurrent original jurisdiction to adjudicate controversies under the Act. Section 8-43-201 C.R.S. 2001; Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). Even assuming that the rule precluding concurrent jurisdiction is applicable to claims under the Act, we conclude the DOAH did not assume exclusive jurisdiction over the respondents' motion for attorney fees.
The respondents' motion was originally filed with the DOAH and the respondents applied for a hearing before an ALJ on August 21, 2001. However, a Notice of Hearing was not issued until November 9, 2001. Furthermore, the hearing was scheduled for December 13, 2001 and no ALJ considered the merits of the respondents' motion for attorney fees prior to October 29, 2001, when the Director granted the motion. Under these circumstances, and considering the unique procedural process for workers' compensation claims under the Act, we are not persuaded the DOAH had exclusive subject matter jurisdiction over the issue of attorney fees. Compare Martin v. District Court in and for County of Adams, 375 P.2d 105 (Colo. 1962) (exclusive jurisdiction established when service of process on defendant completed).
III.
We also reject the attorney's contention the Director abused her discretion in awarding attorney fees without an evidentiary hearing.
Due process requires that the parties be afforded an evidentiary hearing where the administrative adjudication involves a question of fact. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the Director is not required to hold an evidentiary hearing where there is no genuine issue of material fact, and judgment may be entered as a matter of law. Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969). We agree with the Director that the respondents are entitled to attorney fees as a matter of law.
Section 8-43-207.5(2), C.R.S. 2001, grants a PALJ authority to hold a prehearing conference on "discovery matters," and "issue interlocutory orders." Section 8-43-207.5(3), C.R.S. 2001, provides that "an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties," but further provides "such an order shall be interlocutory."
In Industrial Claim Appeals Office v. Orth, supra, the court held that PALJ orders approving settlements are final orders subject to immediate review. However, the court distinguished orders approving settlements from orders "relating to a prehearing conference." The court stated that such prehearing orders are "interlocutory ( i.e., not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the Director or an ALJ." Id. 1254. The court also indicated that "the propriety of a PALJ's prehearing order may be addressed at the subsequent hearing." Id. at 1254. Such published opinions of the court are binding. C.A.R. 35(f).
Under § 8-43-301(2), C.R.S. 2001, a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty" may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
Because § 8-43-207.5 explicitly states that a PALJ's order is interlocutory and Orth holds that all PALJ orders except orders approving final settlements are interlocutory, the filing of the petition for review of the PALJ's order was not warranted by existing law. The attorney does not advance any argument for the extension, modification, or reversal of the existing law.
Moreover, because both the underlying discovery order and our order dismissing the petition to review the PALJ's order were interlocutory, the attorney's action for judicial review in the court of appeals and supreme court was also frivolous. Consequently, the Director did not err in granting the respondents' motion for costs and attorney fees without affording the attorney an evidentiary hearing.
The attorney's further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the Director's orders dated October 29, 2001 and October 30, 2001, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 13, 2002 to the following parties:
Estate of Paul Dannaman, Carol Kennedy, 5305 22nd St., Lubbock, TX 79407
Sturgeon Electric Company, 12150 E. 112th Ave., Henderson, CO 80640-9116
Diane Gutierrez, Zurich Insurance Company, P. O. Box 370308, Denver, CO 80237
Zurich Insurance Company, P. O. Box 20048, Kansas City, MO 64195
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Estate of Claimant)
Marsha A. Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)
BY: A. Pendroy