Opinion
W.C. No. 4-330-420
May 15, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed his workers' compensation claim against the Colorado Insurance Guaranty Association (CIGA). We affirm.
The facts and applicable law are undisputed. On December 24, 1997, the claimant filed a claim in which he alleged a work-related injury as a result of exposure to asbestos while employed by Ebasco Constructors Inc (Ebasco). The claimant worked for Ebasco until December 1986, at which time Ebasco was insured for workers' compensation by Employers National Insurance Company (Employers). Subsequently, Employers became insolvent and was put in receivership. The court established July 31, 1995, as the last date for filing a claim against Employers. Because Employers is insolvent, the claimant filed his workers' compensation claim against CIGA.
CIGA was established by § 10-4-501 C.R.S. 1999, and exists to pay the "covered claims" of insolvent insurers. See Barr v. Colorado Insurance Guaranty Association, 926 P.2d 102 (Colo.App. 1995). Section 10-4-508(1)(a), C.R.S. 1999, states that a "covered claim" excludes claims filed "after the final date set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer."
Because the claimant's workers' compensation claim was filed after July 31, 1995, CIGA moved for a summary judgment denying the claim. The claimant objected and filed a cross motion and "Motion to Dismiss" CIGA's motion for summary judgment on grounds that § 10-4-508(1)(a) violates equal protection guarantees of the Colorado and United States Constitutions. Therefore, the claimant requested a declaratory judgment that the statute is unconstitutional.
The ALJ found that the claim is not a "covered claim" as defined by § 10-4-508(1)(a). Therefore, the ALJ determined CIGA is not liable to pay benefits for the claimant's alleged injury. Further, the ALJ concluded he lacked jurisdiction to resolve the claimant's constitutional challenges to the statute. Therefore, the ALJ granted the motion for summary judgment and dismissed the claim against CIGA.
On review the claimant renews his contention that § 10-4-508(1)(a) violates "due process of law" and equal protection guarantees. However, we have no authority to resolve the claimant's constitutional challenges to the statute. Section 8-43-301(8), C.R.S. 1999; Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
Moreover, insofar as the claimant contends that § 10-4-503(4) is "unreasonable, arbitrary, capricious" and deprives claimants of access to the courts, we consider this argument to be inextricably interwoven with his argument that the statute is unconstitutional. Therefore, we lack jurisdiction to consider the argument.
The claimant also contends the ALJ failed to rule on his cross motion and motion to dismiss. However, we agree with CIGA that the ALJ implicitly denied the claimant's motions by granting CIGA's request for summary judgment. Consequently, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated December 14, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ______________________________ David Cain
______________________________ Kathy E. Dean
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. 1999. 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 May 15, 2000 to the following parties:
Esmel Alexander, 864 Conestoga Rd., Bailey, CO 80421
Ebasco Constructors, Inc., 3000 W. MacArthur, Santa Ana, CA 92704-0993
Ebasco Constructors, Inc., 1177 High Ridge Rd., Stamford, CT 06905-1211
Colorado Insurance Guaranty Association, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
Charles E. Withers, Esq., P. O. Box 4417, Boulder, CO 80306-4417 (For Claimant)
Steven J. Picardi, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent Insurer)
BY: A. Pendroy