Opinion
W.C. No. 4-807-513.
July 11, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated October 19, 2010 that terminated the claimant's temporary total disability (TTD) benefits. We affirm.
The claimant suffered an admitted industrial injury on October 19, 2009 and the respondent admitted liability for TTD benefits. The issue for determination at hearing concerned whether the respondent had proven that the claimant's TTD benefits should be terminated pursuant to § 8-42-105(3)(d)(I) C.R.S. The respondent contended that the attending physician gave the claimant a written release to return to modified employment, such employment was offered to the claimant in writing and the claimant failed to begin such employment. The ALJ found the respondent had satisfied the conditions for termination of TTD and terminated the claimant's entitlement to TTD benefits pursuant to § 8-42-105(3)(d)(I). The claimant seeks review of this decision.
We first take up a procedural issue. Section 8-43-301(9), C.R.S., grants us power to "issue such procedural orders as may be necessary to carry out" our appellate review. The claimant has filed an Opposed Motion to Strike the Respondent's Brief. The claimant contends in this motion that the respondent, Weld County, was not her employer, but rather the Weld County Sheriff was at all times material the claimant's sole and exclusive employer as a matter of law. In support of this contention, the claimant attaches a stipulation entered into by the Weld County Sheriff in an unrelated U. S. District Court case. The claimant contends the respondent lacks standing to participate in this administrative adjudicative proceeding. The claimant has made a similar argument in her petition to review, arguing that the respondent was not her true employer and thus was not entitled to the relief it had requested at the hearing. The claimant has cited civil cases addressing whether tort claims for injuries sustained in a motor vehicle accident with a county deputy sheriffs vehicle must be brought against the county sheriff, rather than the county or the county board of commissioners. See Tunget v. Board of County Com'rs of Delta County 992 P.2d 650 (Colo. App. 1999).
The respondent has argued that the claimant failed to raise this argument before ALJ Felter. It is generally true that in such circumstances the issue would not have been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994). However, the claimant has raised an issue of jurisdiction or standing.
As we understand the claimant's Corrected Petition to Review, she contends that the respondent was not her true employer and was thus not entitled to the relief requested. The relief requested by the respondent was to terminate payment of TTD benefits based upon its contention that employment was offered to the claimant and the claimant failed to begin such employment. The claimant appears to be arguing that because the respondent was not her employer, it is not entitled to seek termination of TTD benefits, but must continue to pay TTD benefits to a person who was never employed by it. We are not persuaded to grant the relief requested by the claimant.
A court's jurisdiction consists of two elements: jurisdiction over the parties, or personal jurisdiction, and jurisdiction over the subject matter of the issue to be decided, or subject matter jurisdiction. Leewaye v. Industrial Claim Appeals Office 178 P.3d 1254 (Colo. App. 2007). Subject matter jurisdiction involves a court's power to resolve a dispute in which it renders judgment. A court has subject matter jurisdiction if the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority. Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002) (quoting Paine, Webber, Jackson Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo. 1986)). These concepts apply to the authority of an administrative agency as well. Leewaye v. Industrial Claim Appeals Office, supra.
Subject matter jurisdiction can be raised at any time, even after judgment. See Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo. 2000); Hoyman v. Coffin, 976 P.2d 311 (Colo.App. 1998). However, personal jurisdiction may be waived if the party participates in litigation of the merits. Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999); Cont'l Bank v. Meyer, 10 F.3d 1293, 1296 (7th Cir. 1993) (defendants waived their objection to personal jurisdiction by participating in the merits of the lawsuit, "although [they] pled lack of jurisdiction in their answer"); T.L. Smith Co. v. District Court, 163 Colo. 444, 431 P.2d 454 (1967) (defendant waived objection to personal jurisdiction by filing a permissive counterclaim seeking damages for plaintiffs breach of contract).
ALJs are vested with original jurisdiction to hear and decide all matters arising under the Workers' Compensation Act of Colorado (Act). See § 8-43-201, C.R.S.; Blood v. Qwest Services Corp., 224 P.3d 301 (Colo. App 2009). Cases involving an ALJ's determination of what party is liable as the employer under the Act are legion. In our view, there is no question that the ALJ had subject matter jurisdiction to consider the identity of the claimant's employer under the Act. Thus, the subject matter jurisdiction of the ALJ is not implicated.
On the question of personal jurisdiction, the claimant filed a claim against the respondent and received benefits from that respondent. Furthermore, both the claimant and the respondent participated in the hearing on the merits of the petition to suspend benefits. No party raised any issue concerning the employment relationship. To the extent that there was any question involving personal jurisdiction, that question was waived. Therefore, contrary to the arguments of the claimant, the ALJ had both subject matter jurisdiction and personal jurisdiction over the parties and issues in this claim.
In addition, we are unpersuaded by the claimant's contention that the respondent, who the claimant contends is obligated to continue to provide TTD benefits to her, does not have standing in this appeal. In making this argument, the claimant has cited the recent decision in First Comp Ins. v. Industrial Claim Appeals Office, 252 P.3d 1221, (Colo. App. 2011). However, we read nothing in First Comp. that would suggest the respondent here does not have standing. In First Comp. the court first noted that because a court does not have jurisdiction over a case unless the plaintiff has standing to bring it, the court must determine whether the plaintiff had standing before it could address the merits of its claim. We of course are also obligated to first address the issue of standing. The Court then went on to determine that to establish standing, a party must demonstrate: (1) that it suffered injury in fact, and (2) that the injury was to a legally protected interest. Here, the respondent's liability to pay TTD benefits is not indirect or incidental. Further, the inability to terminate TTD benefits is clearly the type of "concrete adverseness" described by the court in First Comp. which would give the respondent standing. Because we perceive no jurisdictional or standing issues that would prevent the ALJ from entering an order, or prevent our review of that order, we have considered the respondent's brief and now address what we understand as the remaining issue in the claimant's petition to review.
The claimant contends that the ALJ's findings of fact do not support his order and that the conclusions of law are erroneous because of the respondent's refusal to comply with the statutory preconditions of § 8-42-105(3)(d)(I), C.R.S. That statute provides that TTD benefits shall continue to be paid until the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. Here, the ALJ found that the respondent had proven by a preponderance of the evidence that the claimant refused a valid offer of modified employment that was extended to her in compliance with § 8-42-105(3)(d)(I). The ALJ further found that the claimant's testimony notwithstanding, there was no credible evidence establishing that the offer of modified employment was unreasonable.
The claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Having so resolved the issue of substantial evidence, we are precluded from disturbing the ALJ's order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. Section 8-43-301(8) C.R.S. Here, we have reviewed the ALJ's findings of fact and conclusions of law. The ALJ's findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Furthermore, the ALJ's findings support the conclusion that the respondent was entitled to terminate TTD benefits. The claimant's assertions do not persuade us to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated October 19, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Baird
_______________________ Dona Rhodes
WELD COUNTY, Attn: MICHELLE RAIMER, GREELEY, CO, (Employer).
LAW OFFICES OF RICHARD K. BLUNDELL, Attn: RICHARD K. BLUNDELL, ESQ., GREELEY, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: C. SANDRA PYUN, ESQ., DENVER, CO, (For Respondents).
CTSI, Attn: LESLEY CAVANAUGH, DENVER, CO, (Other Party).
HAGEN MELUSKY LAW OFFICES, Attn: JASON R. WOLFE, ESQ., LOWER LEVEL, WINDSOR, CO, (Other Party 2).