Opinion
W.C. No. 4-717-132.
January 22, 2009.
FINAL ORDER AND ORDER DISMISSING PETITION TO REVIEW
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated June 24, 2008, that ordered the claimant to pay to the respondents' attorney fees and costs in the amount of $129. We reverse the award of attorney fees and dismiss the petition to review in all other respects.
No hearing was held in this matter. The order under review here was entered by ALJ Krumreich on June 24, 2008. The order recited that a previous order dated May 21, 2008, granted the respondents' motion for attorney fees and instructed the respondents to submit an accounting of the costs incurred by the respondents in preparing for a hearing pursuant to the claimant's application for hearing dated April 4, 2008. The respondents submitted an affidavit of costs, and the order dated June 24, 2008 ordered the claimant to pay costs and attorney fees in the amount of $129.00.
The order dated May 21, 2008, granted the respondents' Opposed Motion to Strike Claimant's April 4, 2008 Application for Hearing, Respondents' Request for Attorney Fees, and Motion for Protective Order. In granting that motion, ALJ Krumreich entered factual findings based upon certain undisputed factual recitations made in the respondents' motion. The ALJ found that the claimant was placed at maximum medical improvement on January 21, 2007 by an authorized treating physician, Dr. Bloch, and that on February 13, 2007, Dr. Aschberger assigned the claimant whole person impairment equal to 14 percent. The respondents filed a final admission of liability on March 22, 2007, and the claimant objected and filed a notice and proposal of independent medical examination, seeking to obtain a Division-sponsored independent medical examination (DIME). Pursuant to its procedures, the Division of Workers' Compensation (the Division) issued a DIME panel containing the names of three prospective DIME doctors. The applicable procedure provides that each party alternately strike the name of one of the prospective DIME examiners and that the remaining doctor perform the DIME. The respondents struck one of the doctors; however, the claimant declined to do so. On May 31, 2007, the Division selected a doctor to perform the DIME. The claimant took no steps to arrange for or to undergo the DIME. On May 18, 2007, the claimant filed an application for a hearing, endorsing the issue of the "[propriety of DIME panel selection and physician specialties, contrary to Claimant's DIME rights as expressed in AFL-CIO v. Donlan and Whiteside v. Smith, contrary to Claimant's true treatment and diagnostic needs and extent of her occupational impairments."
ALJ Krumreich's order dated May 21, 2008 then recited that ALJ Friend had issued an order dated August 22, 2007, striking the claimant's application for hearing and vacating the hearing then set. ALJ Krumreich quoted from the portion of ALJ Friend's order stating that the Office of Administrative Courts lacked jurisdiction "to select a DIME physician or to determine the specialties of the physicians on the panel."
ALJ Krumreich then found that the claimant filed a second application for hearing on August 29, 2007, endorsing the identical issue as previously endorsed, and that ALJ Broniak entered an order dated September 27, 2007, striking the second application for hearing and also granting the respondents' motion for attorney fees against the claimant. ALJ Krumreich stated that the claimant's challenge to the propriety of the physician panel issued to the parties pursuant to the DIME application necessarily arose attendant to the claimant's challenge to the validity of the authorized treating physician's determination of either maximum medical improvement or permanent impairment. ALJ Krumreich agreed with ALJ Broniak that an ALJ lacks jurisdiction to adjudicate such challenges to the propriety of a DIME panel until the DIME has been conducted and completed.
ALJ Krumreich then noted that the claimant had filed a third application for hearing endorsing the identical issues as set forth in the two previous applications struck by ALJs Friend and Broniak. ALJ Krumreich applied the doctrine of "the law of the case" and concluded that the third application should also be stricken. He therefore granted the respondents' motion and struck the application for hearing and vacated the hearing that had apparently been set.
ALJ Krumreich also concluded that the issue of the claimant's challenge to the propriety of the DIME unit was not ripe prior to the performance and completion of the DIME. Accordingly, he granted the respondents' motion for attorney fees pursuant to § 8-43-211(1)(d), C.R.S. 2008 and ordered the respondents to submit an accounting of the fees and costs associated with their preparation for the hearing or setting pursuant to the claimant's third application for hearing, dated April 4, 2008. The ALJ provided the claimant with fifteen days within which to file a written response or request a hearing on the issue of the fees.
Finally, the ALJ ordered that "[n]o further hearings will be set in this claim upon any Application for Hearing that endorses the same or similar issues as in Claimant's previous Applications referred to in this Order, unless accompanied by a Notice of Completion of IME Proceeding from the Division of Workers' Compensation IME Unit."
As previously noted, the respondents submitted the accounting required by the ALJ's order, to which the claimant apparently did not object, and the ALJ entered the order dated June 24, 2008, requiring the claimant to pay $129 in attorney fees.
The claimant appealed the ALJ's order and makes two general arguments. First, the claimant argues that the ALJ erred in imposing attorney fees against her and, second, the claimant argues that the ALJ erred in striking her application for hearing and in precluding her from filing any identical applications in the future. We conclude that the ALJ erred in imposing attorney fees against the claimant. In all other respects, the ALJ's order is not final and reviewable and we therefore dismiss the petition to review insofar as it seeks review of those portions of the order.
I.
With regard to the award of attorney fees, the claimant makes a number of arguments in support of her appeal. However, because we conclude that the ALJ erred in determining that the issue was not ripe, we reverse the award of fees. Because of that resolution, it is unnecessary for us to address the claimant's other arguments concerning the award of fees.
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 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). Ripeness requires an actual case or controversy between the parties that is sufficiently immediate and real so as to warrant adjudication. See generally Jessee v. Farmers Ins. Exch, 147 P.3d 56 (Colo. 2006); Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002). In general under the doctrine of ripeness courts will not consider uncertain or contingent future matters because the injury is speculative and may never occur. See generally Stell v. Boulder County Dep't of Social Svcs., 92 P.3d 910,(Colo. 2004).
Here, the claim brought by the claimant was apparently a challenge to the DIME panel issued by the Division. In our view that dispute was immediate and real and was therefore ripe at the time the application for hearing was filed. Although the claimant did not prevail and her applications for hearing were dismissed, that action did not deprive the claims of ripeness. In this regard, we note that the Workers' Compensation Rules of Procedure apparently contemplate litigation before the Office of Administrative Courts ALJs of disputes that arise over the administration of the DIME system. Thus, those rules 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 11-3(N) and 11-10. 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.
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. Thus, BCW Enterprises generally stands for the proposition that an issue is not "ripe for adjudication" if, under the statutory scheme, there is a legal impediment to its resolution. The legal impediment in BCW Enterprises was the prospect of inconsistent results if the penalty claim was considered "ripe" for adjudication during the pendency of the appeal.
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. Here, there are no similar reasons for ruling that the challenge to the DIME panel was not ripe for adjudication at the time the application for hearing was filed. Here there was a real and immediate controversy between the parties regarding whether the DIME panel was properly constituted and whether the Division had violated its rules or the statute in issuing the panel. It is true the ALJ apparently concluded that he did not have jurisdiction to adjudicate that issue, both because he had no jurisdiction over the Division's DIME procedures and because the DIME had not then occurred. However, this ruling does not retroactively deprive the claim of ripeness. Accordingly, because we conclude that the claim regarding the DIME procedures was ripe at the time the application for hearing was filed, we reverse the award of attorney fees and costs.
As noted, because of our resolution of this issue it is unnecessary for us to address the claimant's other arguments regarding this issue.
II.
The claimant also contends that the ALJ erred in striking her application seeking to dispute the propriety of the DIME selection procedures. The claimant also argues that the ALJ erred in precluding her from filing future applications for hearing on this same issue. We conclude that these portions of the order are not presently final and reviewable. Therefore, we dismiss the petition to review regarding these issues.
Section 8-43-301(2), C.R.S. 2008, provides that any dissatisfied 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." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute, the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). However, our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
We have issued numerous decisions holding that orders related to DIME requests are in the nature of evidentiary rulings and are therefore interlocutory. See, e.g., Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000); Lozano v. Front Range Rebar Co., Inc., W.C. No. 4-285-320 (August 3, 1998). The portion of the ALJ's order striking the application for hearing pending the completion of the DIME does not award or deny a benefit and therefore is not final. Cf. Meza v. Conagra Beef Company, W.C. No. 4-444-220 (December 11, 2000). Accordingly, the ALJ's order, insofar as it requires the claimant to proceed with her request for a DIME prior to adjudication of her dispute over the DIME panel, is interlocutory and not currently reviewable. See Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003) (order striking claimant's request for DIME and ordering Division to proceed with respondents' request for DIME not final and reviewable); See also Gates v. Rose Terrace W. C. No. 4-452-439 (March 24, 2004). Thus, we may not consider the issue at this time. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843, 846 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory).
Finally, we understand that the effect of the ALJ's order may be to delay resolution of the claimant's dispute over the DIME panel until after the DIME occurs. We further understand that that might result in the expenditure of time and money that might otherwise have been saved had the dispute been adjudicated earlier. However, our jurisdiction to review an interlocutory order may not be conferred by practical considerations or by other circumstances, such as those present here. We have previously noted that we cannot review an interlocutory order solely on the basis that "there is no other adequate remedy." See Jones v. Chicken-N-Pasta, W.C. No. 4-197-841 (February 3, 1995). In that order we noted that the Colorado Supreme Court had recognized a "death knell" exception to the final judgment rule, where an interlocutory appeal would be taken where the substantial rights of a party could be irreparably lost if the appeal were delayed until a final order issued. However, we observed that that doctrine had not been made applicable to administrative proceedings, nor had the legislature intended such an exception to § 8-43-301(2). Even if that doctrine were applicable here, which we doubt, absent some authority from the appellate courts to the contrary, we are not persuaded to depart from our holding in Jones. We have no original jurisdiction and the legislature has conferred upon us only appellate jurisdiction to review orders requiring payment of a penalty or benefit or denying the claimant a benefit or penalty. The portion of the ALJ's order striking the claimant's application for hearing and precluding her further filing such applications does not require or deny such payments and we may not review those portions of the order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 24, 2008, is reversed insofar as it awards attorney fees and costs against the claimant. IT IS FURTHER ORDERED that the claimant's petition to review is dismissed in all other respects without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
EMILY MAESTAS, FORT LUPTON, CO, (Claimant).
WAL MART STORES, INC., Attn: HUMAN RESOURCES, BRIGHTON, CO, (Employer).
AMERICAN HOME ASSURANCE COMPANY, Attn: TPA CLAIMS MANAGEMENT, BENTONVILLE, AR, (Insurer).
LAW OFFICES OF RICHARD K BLUNDELL, Attn: RICHARD K BLUNDELL, ESQ, GREELEY, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M FRANCES MCCRACKEN, ESQ, DENVER, CO, (For Respondents).
CMI, Attn: JULIE WOODY, BENTONVILLE, AR(Other Party).