Opinion
W.C. No. 4-669-749.
October 6, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 11, 2009, that denied and dismissed the claimant's claim for a penalty. We set aside the order and remand this matter for additional findings regarding the amount of penalties to be assessed against the respondents.
We initially note that the claimant has filed a Motion for Permission to File Reply Brief combined in the alternative with a Motion to Strike Respondents' Brief in Opposition. The respondents have objected to the claimant's motion for permission to file a reply brief and replied to the motion to strike their brief in opposition. We issue this order pursuant to § 8-43-301(9), C.R.S. 2009, which grants us power to "issue such procedural orders as may be necessary to carry out" our appellate review.
The claimant contends that the respondents failed to file properly their Brief in Opposition because it was filed with the ALJ in the Colorado Springs office rather than in the Denver Office of the Office of Administrative Courts. The claimant argues that the respondents by filing their brief with the Colorado Springs Office of Administrative Courts violated Senate Bill 09-070 (SB70). Colo. Sess. Laws 2009, Ch 49 at 177.
SB 70 amended § 8-43-301(2) to provide that petitions to review are to be filed with the Denver Office of the Office of Administrative Courts in the Department of Personnel rather with the administrative law judge (ALJ) at the place indicated in the order. Here we note that the ALJ indicated in his order that the petition to review was to be filed with the Office of Administrative Courts in Colorado Springs.
In interpreting these provisions, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Here the plain and ordinary meaning of Senate Bill 09-070 applies to the place of filing a petition to review not the place for filing a brief. Therefore, the claimant's motion to strike the Respondents' Brief in Opposition is denied.
We have considered the claimant's request to file a reply brief. However, the statute does not provide for such a brief, the claimant's opening brief was lengthy, and we perceive no need for a reply brief. Consequently, the request is denied.
A hearing was set for December 10, 2008 before ALJ Walsh pursuant to an application for hearing filed by the respondents. Later the respondents' attorney filed a Notice of Withdrawal of Application for Hearing and a Hearing Cancellation form. The claimant filed a motion to retain the December 10, 2008 hearing date. The hearing went forward as scheduled before ALJ Walsh who entered an order on an issue unrelated to the present controversy. The order of ALJ Walsh became final after we affirmed the order. The claimant then sought a penalty against the respondents and the matter was set for hearing before ALJ Stuber. The sole issue for determination before ALJ Stuber was whether to impose a penalty against the respondents under § 8-43-304(1) C.R.S. 2009 for violation of Office of Administrative Courts' Rule of Procedure (OACRP) 15, 1 Code Colo. Reg. 104-3 at 7 (2009). The claimant requested imposition of penalties against the respondents based upon the filing of an OACRP 15 Notice of Withdrawal of Hearing Application that the claimant alleged was filed without her agreement and in the absence of the respondents' counsel conferring with the claimant. OACRP Rule 15 provides for vacating hearings as follows:
After a response to an application is filed, the application may not be withdrawn and the hearing may not be vacated except upon the agreement of all parties or upon the order of a judge. If the parties agree to the withdrawal of the application the applicant must promptly notify the OAC of the agreement to vacate the hearing. Notification shall be made by letter, facsimile or telephone.
ALJ Stuber made the following findings of fact regarding the issue of penalties. The respondents wanted to withdraw their application for hearing and to vacate the December 10, 2008 hearing. The respondents' former attorney filed a cancellation form without agreement of all parties and without an order from a judge. The respondents' attorney had no reasonable basis to believe that the claimant's attorney agreed to cancel the December 10, 2008 hearing. The failure of the claimant's attorney to respond to a letter informing the claimant of the respondents' intent to withdraw their application for hearing and to cancel the hearing satisfied the obligation to confer prior to filing a motion to vacate the December 10, 2008 hearing. However, it did not provide a reasonable basis for the respondents' former attorney to believe the claimant had agreed to cancel the hearing. The respondents' former attorney committed an unreasonable violation of OACRP 15 by the filing of the cancellation form with a check in the box to verify that all parties agreed to the cancellation of the hearing.
However, ALJ Stuber determined that penalties under § 8-43-304(1) are not available for violation OACRP 15. Therefore, ALJ Stuber denied the claimant's request for penalties. The claimant brings this appeal contending that ALJ Stuber erred in failing to impose penalties under § 8-43-304(1), C.R.S. 2009, for the respondents' failure to comply with OACRP 15. We agree and remand the matter for a new order concerning the amount of penalties to be imposed.
The claimant contends that the ALJ erred in deciding that OACRP 15 is not a "rule" and is not an "order" of an ALJ or the Director of the Division of Workers' Compensation. The claimant contends the ALJ erred in failing to determine that OACRP 15 is an order or rule for purposes of imposition of penalties under § 8-43-304. The claimant argues that the rule promulgated by the Office of Administrative Courts must be viewed as inextricably bound with the rules promulgated by the Division of Workers' Compensation and therefore a violation of either satisfies the criteria necessary to support a claim for penalties under § 8-43-304(1). The claimant argues that the power vested within the Executive Director of the Department of Personnel to promulgate rules along with the Director of the Division of Workers' Compensation demonstrates a shared responsibility to adopt rules to implement the provisions of the Colorado Workers' Compensation Act (Act). The claimant contends that this shared responsibility compels the conclusion that the general penalty sanctions under § 8-43-304(1) are applicable for violation of a rule promulgated by the Office of Administrative Courts. We agree with the claimant's arguments.
It is not disputed that OAC rules of procedure were promulgated by the Executive Director of the Department of Personnel and Administration in 2005 and that they repealed the prior Rule 8 Workers' Compensation Adjudication Rule. The Division of Workers' Compensation specifically announced that the workers' compensation adjudication rules would be promulgated under the authority of the Office of Administrative Courts. 7 CCR 1101-3 (2005) at 28; (CDLE Website Archives, "Rules as they existed immediately prior to January 1, 2007" http://www.coworkforce.com/dwc/Rules/Rules2005/Rule%208.pdf).
As pertinent here, § 8-43-304(1) provides that any employer or insurer who fails or neglects to obey any lawful order shall be punished by a fine of not more than $500 per day for each such offense. Giddings v. Indus. Claim Appeals Office, 39 P.3d 1211 (Colo. App. 2001). The term "order" as used in this penalty provision includes a "rule." See § 8-40-201(15), C.R.S. 2009; Holliday v. Bestop, Inc., 23 P.3d 700 (Colo. 2001); Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002); Pioneers Hospital of Rio Blanco County v. Industrial Claim Appeals 114 P.3d 97 (Colo. App. 2005). Section 8-40-201(15) defines an "order" as "any decision, finding and award, direction, rule, regulation, or other determination arrived at by the director or an administrative law judge." The definitional section of the Workers' Compensation Act (Act) does not contain a definition of "rule."
The principles governing the interpretation of administrative regulations are the same as those concerning statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995), aff'd. in part, rev'd. in part on other grounds, 946 P.2d 913 (Colo. 1997). Thus, the overall objective is to interpret the rules in a manner which effects the Director's intent. Ray v. New World Van, W. C. No. 4-520-251(October 12, 2004). Because the language used is the best indicator of intent, the rules should be given their plain and ordinary meanings unless the result is absurd.
In our view the plain and ordinary meaning of "rule" under § 8-40-201(15) includes the Procedural Rules for Workers' Compensation Hearings promulgated by the Colorado Department of Personnel and Administration Office of Administrative Courts. Here the intent of the Director of the Division of Workers' Compensation is clearly indicated by his notation upon the repeal of Rule 8 of the Workers' Compensation Rules of Procedure that the Adjudication Rules would be promulgated under the authority of the Office of Administrative Courts.
Further, the rules should be read to give a consistent, harmonious and sensible effect to all their parts. Spracklin v. Industrial Claim Appeals Office, supra. Here the Workers' Compensation Rules of Procedure contemplate that the Adjudication Rules will be controlled by OACRP. In our view allowing for imposition of penalties under § 8-43-304(1), for failure to comply with OACRP would give a sensible effect to the Workers' Compensation Rules of Procedure as a whole, which are dependent upon the enforcement of the Adjudication Rules for Workers' Compensation hearings found in the OACRP.
In addition, we consider relevant to the present dispute the legislative declaration contained in § 8-40-102 C.R.S. 2009 that provides that the intent of the general assembly is that the "Workers' Compensation Act of Colorado" be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers. We note that the court of appeals in Pioneers Hospital of Rio Blanco County v. Industrial Claim Appeals supra., affirmed the imposition of a penalty as a failure to obey an "order" within the meaning of § 8-43-304(1), for failure to comply with DOWC Rule VIII which at the time provided for the workers' compensation adjudication rules. In our view, after the transfer of authority to issue procedural rules, to now allow parties to violate the Procedural Rules for Workers' Compensation Hearings without threat of penalties under § 8-43-304(1) would at least to some extent frustrate the intent of the general assembly to foster the quick and efficient resolution of disputes.
Additionally, the Panel has held that a violation of a rule of procedure may be the basis of penalty under § 8-43-304(1) because the requirements of the rules constitute duties "lawfully enjoined" by the Director, which is a category of violations punishable under that statute. Eg. O'Grady v. Denver Public School District, W.C No. 4-151-533, November 18, 1994.; Jyrkinen v. Peakload, Inc., W.C. No. 4-139-096, June 15, 1994; Porras v. Colorado Compensation Insurance Authority W. C. No. 4-155-161(October 12, 1995). Here again it is our opinion that upon the repeal of Rule 8 of the Workers' Compensation Rules of Procedure the Director of the Division of Workers' Compensation lawfully enjoined that the Adjudication Rules relevant to workers' compensation hearings would be promulgated under the authority of the Office of Administrative Courts. Therefore, we perceive no reason why a penalty under § 8-43-304(1) may not be imposed for violation of a rule promulgated pursuant to a lawfully enjoined duty to prepare such rules of procedure.
Here the ALJ found that the respondents committed an unreasonable violation of OACRP 15 by filing the cancellation form with the box wrongfully checked verifying that all parties had agreed. The imposition of penalties under § 8-43-304(1) is mandatory if there has been a violation of the Act and the violation was not reasonable under an objective standard. Rael v. Debourgh Manufacturing Co., W.C. No. 4-115-551 (February 27, 1998); Marple v. Saint Joseph Hospital, W.C. No. 3-966-344 (September 15, 1995). However, the amount of any daily penalty, between one cent and five hundred dollars per day, is within the discretion of the ALJ. Consequently, it is necessary to remand the matter to ALJ Stuber to determine the amount of the penalty to be imposed against the respondents in view of any aggravating or mitigating factors concerning the respondents' violation. See Martinez v. Flying J. Inc., W.C. No. 4-374-856 (June 22, 2000) (evidence that violation was harmless may be relevant in determining the amount of penalties to be imposed).
IT IS THEREFORE ORDERED that the ALJ's order dated June 11, 2009, is set aside and the matter is remanded to the ALJ for the imposition of penalties consistent with the views expressed herein.
IT IS FURTHER ORDERED that the claimant's motion to strike the Respondents' Brief in Opposition is denied denied. and claimant's request to file a reply brief is
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
JOSEPHINE GIANZERO, 28 FROST LANE, COLO SPRINGS, CO, 80916 (Claimant).
WAL-MART STORES, INC., Attn: BETH MCELROY, COLO SPRINGS, CO, (Employer).
AMERICAN HOME ASSURANCE, Attn: LEA ANN GAVELLAS, C/O: CMI, BENTONVILLE, AR, (Insurer).
STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLO SPRINGS, CO, (For Claimant).
RITSEMA LYON, PC, Attn: MARGARET A METZGER, ESQ., DENVER, CO, (For Respondents).