Opinion
W.C. Nos. 4-699-837 4-741-385.
May 7, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 7, 2010, that denied and dismissed the claimant's request for attorney fees against the respondents for filing an application for hearing on an issue that was not ripe. We affirm.
The claimant requested attorney fees against the respondents pursuant to § 8-43-211(2)(d), C.R.S. for filing an application for hearing on an issue not ripe for adjudication. On July 30, 2009 the respondents filed an application for hearing on both claims to determine the issues of compensability in W.C. 4-741-385 and penalties. The application contained a check in the box provided for penalties, but did not contain any specific ground upon which penalties were sought. Claimant's Exhibits at 18. It appears undisputed that the box was checked by mistake. Tr. at 27-28. On September 1, 2009, Prehearing Administrative Law Judge (PALJ) Eley granted respondents' request to withdraw the issue of penalties.
The ALJ, citing Olivas-Soto v. Industrial Claim Appeals Office 143 P.3d 1178 (Colo. App. 2006), found that the term "ripe for adjudication" refers to a disputed issue concerning which there is no legal impediment to immediate adjudication. The ALJ concluded that the claimant had failed to demonstrate that any legal impediment existed to the adjudication of the penalty issue listed by the respondents and therefore denied and dismissed the claimant's request for attorney fees.
On appeal, the claimant contends the ALJ abused his discretion in refusing to award attorney fess and cost pursuant to § 8-43-304(4) C.R.S. for respondents' failure to properly endorse a penalty issue. The claimant argues that respondents failed to state with specificity the grounds on which the penalty was to be asserted; failed to state the statute or rules violated; and failed to state the beginning and ending dates of the penalty period being sought. The claimant contends that based upon these deficiencies in the endorsement of the issue the penalty issue was not ripe for hearing at the time of the filing of the application and the respondents violated § 8-43-211(2)(d), C.R.S. It is provided in § 8-43-211(2)(d) 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, as noted by the ALJ, 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 2, 2005).
Here, the claimant contends that there was a legal impediment for determination of the issue of penalties as endorsed by the respondents in their application for hearing. The claimant argues that the application filed by the respondents did not meet the statutorily imposed requirements contained in § 8-43-304(4), C.R.S., which requires the party seeking penalties to state with specificity the grounds on which the penalty is being asserted. The claimant argues that the respondents' inarticulate endorsement of the penalty issue improperly imposed on her the expense to investigate and defend against an endorsed issue. We are not persuaded that the ALJ erred in denying the claimant's request for attorney fees.
Failure to state with specificity the grounds on which a penalty is asserted subjects a claim for penalties to dismissal. See Young v. Bobby Brown Bail Bonds, Inc., W.C. No. 4-632-376 (April 7, 2010); Marcelli v. Echostar Dish Network, W.C. No. 4-776-535 (March 2, 2010); Gonzales v. Denver Public School District Number 1, W. C. Nos. 4-437-328, 4-441-546 (December 27, 2001); Brown v. Durango Transportation Inc., W. C. No. 4-255-485 (October 2, 1996). However, we are not persuaded that failure to state the basis of the alleged penalty with specificity presents a legal impediment to immediate adjudication of the penalty issue.
In our view, the claimant's argument goes to the issue of whether the respondents' endorsement of the penalty issue on their application for hearing was meritorious and not whether the issue was ripe for determination. In this regard, although we do not determine that the respondents' endorsement of a penalty issue was frivolous, we note that the Workers' Compensation Act formerly provided for the assessment of attorney fees in frivolous actions. That section was repealed effective March 1, 1996 and attorney fees are not generally available as a sanction for endorsing an issue without merit. Colo. Sess. Law 1991, ch. 219, § 8-43-216(1) at 1321. An issue that lacks merit does not necessarily lack ripeness. The two concepts are distinct and a frivolous or meritless claim may nonetheless be ripe for adjudication. See Younger v. Merritt Equipment Company, W.C. No. 4-326-355 (December 30, 2009). We agree with the ALJ that the matter was ripe for adjudication.
IT IS THEREFORE ORDERED that the ALJ's order January 7, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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VICKY M FERRY, COLORADO SPRINGS, CO, (Claimant).
CITY GLASS COMPANY, INC., Attn: GORDY HOFFMAN, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
STEVEN U. MULLENS, P.C., Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON, Attn: SEAN KNIGHT, ESQ., DENVER, CO, (For Respondents).