Opinion
W.C. No. 4-594-683.
July 18, 2011.
ORDER
The claimant seeks review of a February 1, 2011 corrected order of Administrative Law Judge Jones that denied a request for attorney fees and costs under the authority of § 8-43-211(2)(d) C.R.S. We remand for a determination of the amount of the attorney fees to be imposed and against whom the fees should be assessed. We additionally conclude that we lack jurisdiction to review an order entered by ALJ Friend dated June 15, 2010.
This claim has been before the Industrial Claim Appeals Panel (Panel) on a number of occasions on various issues. Further, the Colorado Court of Appeals has issued several decisions on appeal from the Panel. We set forth only the procedural history necessary to resolve the issues now before us.
The claimant suffered an industrial injury on August 20, 2003. The claimant was treated by her authorized treating physician (ATP). The ATP placed her at maximum medical improvement (MMI) and released her to return to full duty work with no permanent impairment on September 4, 2003. The ATP examined the claimant again on September 11, 2003 and reported that she sustained a new injury while opening a jar at home. On July 14, 2004, the ATP placed the claimant at MMI and gave her an impairment rating. However, the ATP later opined that the claimant had reached MMI with respect to her work-related injuries as of September 4, 2003.
The respondents did not file a Final Admission of Liability (FAL) stating a position on MMI and medical benefits. The respondents instead filed an application for hearing on the issues of compensability, relatedness of medical benefits and permanent disability benefits. The matter was set before ALJ Friend. There was a discussion at the commencement of the hearing regarding what issues were to be heard. ALJ Friend ruled that the only issue to be heard was that of the respondents' liability for medical benefits after September 4, 2003 and that all other issues would be reserved for future determination. ALJ Friend ruled that the claimant's medical treatment after September 4, 2003 was not reasonably necessary to cure and relieve her from the effects of the industrial injury.
The claimant appealed ALJ Friend's ruling, contending that he did not have jurisdiction to adjudicate the question whether the compensable injury caused the need for medical treatment after MMI. The Panel determined that ALJ Friend did not have jurisdiction to hear the issue of the claimant's entitlement to medical benefits to cure and relieve her condition.
In affirming the Panel, the Colorado Court of Appeals held that a Division Independent Medical Examination (DIME) is a prerequisite to any hearing concerning the validity of an ATP's finding of MMI, and, absent such a DIME, an ALJ lacks jurisdiction to resolve a dispute concerning that determination. Town of Ignacio v. Indus. Claim Appeals Office, 70 P.3d 513 (Colo. App. 2002). The court was not persuaded by the argument that ALJ Friend had jurisdiction to hear the matter because MMI was not in issue at the hearing. The court noted that causation and MMI were inextricably linked. The court stated that while the issue could be characterized as a causation question (whether the work incident caused the claimant's need for continued treatment), when reviewed in totality it was apparent that the substance of the dispute between the parties was the conflicting MMI findings. Therefore, the court held that a DIME was required to resolve the dispute between the parties' conflicting views regarding MMI and causation. Consequently, the court agreed with the Panel that ALJ Friend lacked jurisdiction to hear the matter because the parties' dispute concerning MMI had not yet been reviewed in a DIME.
The claimant later set a hearing on her request for attorney fees and costs pursuant to § 8-43-211(2)(d) C.R.S. for filing an application of hearing on an issue that was not ripe and for penalties pursuant to § 8-43-304, C.R.S. The matter was set before ALJ Friend. In an order dated June 15, 2010, ALJ Friend granted the claimant's request for attorney fees. Citing the Court of Appeals decision which had determined that ALJ Friend lacked jurisdiction to hold a hearing on medical benefits for treatment received after September 4, 2003, ALJ Friend determined that the issues endorsed by the respondents in their February 11, 2005 application for hearing were not ripe. However, ALJ Friend did not determine the amount of the attorney fees and the person liable to pay any award of attorney fees. ALJ Friend denied the claimant's request for a penalty for the untimely filing of a notice and proposal for a DIME. In addition, ALJ Friend specifically ordered that no part of the June 15, 2010 order was subject to a petition to review until the issue of the amount of the attorney fees was determined.
The matter came before ALJ Jones on November 2, 2010 on the issues of the amount of attorney fees to be awarded and a determination of the "person" liable to pay any award of attorney fees. ALJ Jones also considered the respondents' request to reconsider ALJ Friend's June 15, 2010 order granting attorney fees and costs. The respondents, in arguing for reconsideration, contended that a lack of jurisdiction for the hearing did not mean that their application for hearing on February 11, 2005 was unripe when filed. ALJ Jones granted the respondents' motion to reconsider and denied and dismissed the claimant's request for an award of attorney fees and costs under § 8-43-211(2)(d).
In dismissing the claimant's request for attorney fees and costs under § 8-43-211(2)(d), ALJ Jones found that the attorney who represented the respondents at the July 11, 2005 hearing credibly testified that the hearing was sought concerning medical benefits and the rating of impairment under a rule promulgated by the Director of the Division of Workers' Compensation. See W.C. Rule of Procedure 5-5(H)(2)(b), 7 Code Colo. Reg. 1101-3, previously W.C.R.P. Rule IV(8)(b)(2). Rule 5-5(H)(2)(b) provides:
Within 30 days after a determination of permanent impairment from an authorized Level II accredited physician is mailed or delivered, or a determination by the authorized treating physician providing primary care that there is no impairment is mailed or delivered, the insurer shall either: (a) File an admission of liability consistent with the physician's opinion, or (b) Set the matter for hearing at the Office of Administrative Courts.
ALJ Jones made the following findings. At the July 11, 2005 hearing, respondent's attorney testified that when he prepared the application for hearing, he did not list the issue of MMI as disputed because he did not believe that it was in dispute. Based on the testimony of the respondents' attorney and the exhibits, ALJ Jones found that at the time the respondents applied for hearing, the issue of MMI was not in dispute and the issues identified as being in dispute were ripe for determination. The issue of MMI arose during the course of the hearing and, thereafter, as part of the claimant's jurisdictional challenge to ALJ Friend's power to determine the claimant's entitlement to ongoing medical benefits. Accordingly, ALJ Jones found that there was no basis on which to conclude that the respondents had raised an issue which was not ripe for determination and therefore no basis for assessing attorney fees and costs. ALJ Jones vacated ALJ Friend's order of June 15, 2010 and did not assess attorney fees and costs on the respondents.
I.
On appeal here, the claimant first contends that ALJ Jones erred in reconsidering and denying attorney fees and costs pursuant to § 8-43-211(2)(d) C.R.S. A party that "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 . . . shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting." Section 8-43-211(2)(d). Although the statute does not define "ripe for adjudication," the Colorado Court of Appeals has held that an issue is ripe when it is "real, immediate, and fit for adjudication. [Adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury which may never occur." Olivas-Soto v. Industrial Claim Appeals Office, 143 P.3d 1178, 1180 (Colo. App. 2006).
ALJ Jones viewed Rule of Procedure 5-5(H)(2)(b)(a) as allowing the respondents to file an admission of liability consistent with the physician's opinion or set the matter for hearing at the Office of Administrative Courts. However, we note that in the initial appeal of ALJ Friend's August 30, 2005 order, the respondents had previously asserted that jurisdiction for ALJ Friend to hear the issue of medical benefits was conferred by the predecessor of Rule of Procedure Rule 5-5(H)(2)(b)(a), which was substantively the same. In our January 27, 2006 order, which was affirmed on appeal, we determined that this rule did not authorize a party to bypass the DIME procedures applicable to a challenge to MMI. We further determined that the rule did not confer jurisdiction on ALJ Friend to adjudicate what we viewed as a constructive challenge to MMI in the absence of a DIME. See January 27, 2006 ICAP order for analysis of the predecessor to Rule 5-5(H)(2)(b)(a). We are not persuaded to depart from the Panel's previous analysis of Rule 5-5(H)(2)(b)(a). Therefore, we do not agree with ALJ Jones's determination that this rule prevents the imposition of attorney fees upon the respondent.
Further, ALJ Jones analyzed the case as one in which the claimant did not identify MMI as an issue in dispute and the issue of MMI did not arise until the course of the hearing and, thereafter, as part of the claimant's jurisdictional challenge. However, as the Court of Appeals has instructed us in its decision announced November 24, 2006, causation and MMI were inextricably linked when reviewed in totality, and it was apparent that the substance of the dispute between the parties was the conflicting MMI findings. Therefore, as we read the decision from the Court of Appeals, whatever the intent of the parties, a DIME was required to resolve the dispute regarding MMI and causation.
In our view, BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997), is instructive. In BCW, a division of the court held that penalties were appropriate against a claimant who applied for a hearing seeking attorney fees against the employer for allegedly improperly delaying her medical care in "bad faith" while it appealed the Panel's decision denying her request for a change of physician. In BCW, the claimant applied for a hearing on attorney fees before she prevailed in her appeal and any evaluation of bad faith conduct could be made. BCW Enterprises, Ltd., 964 P.2d at 538. The court concluded that the determination of whether an appeal has been taken in bad faith must await the adjudication of that appeal before the issue becomes ripe. Id. Thus, the court found the BCW claimant's request to be premature. We view BCW Enterprises to stand 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 our view, here the legal impediment to adjudication was the requirement that a DIME be performed to determine the claimant's entitlement to ongoing medical benefits.
Therefore, the respondents filed an application for hearing on an issue that was not ripe for adjudication and an award of attorney fees and costs pursuant to § 8-43-211(2)(d) is appropriate. Consequently, we set aside order of ALJ Jones dated February 1, 2011, and remand for a determination of the amount of the attorney fees to be imposed and against whom the fees should be assessed.
II.
The claimant next contends that ALJ Friend erred in denying penalties pursuant to § 8-43-304 C.R.S. for a violation of § 8-42-107.2(2)(a)(I)(B) C.R.S. concerning DIME requests The claimant contended that the respondents had filed its notice and proposal for a DIME more than 30 days from the date of mailing of the disputed finding that prompted the notice and proposal.
The respondents contend that the claimant failed to raise this issue in her petition to review ALJ Friend's June 15, 2010 order. The respondents concede that ALJ Friend's order did not become final and therefore reviewable until the issuance of ALJ Jones' Order. However, the respondents argue that, while the claimant timely filed her petition to review ALJ Jones' order, she failed to timely file a Petition to Review ALJ Friend's order. We agree.
Section 8-43-301 C.R.S. provides that any party dissatisfied with an order may file a petition to review that order within twenty days and unless a petition to review is filed the order becomes final. Section 8-43-301 (2) provides that the "petition to review shall be in writing and shall set forth in detail the particular errors and objections of the petitioner."
The Court of Appeals has repeatedly ruled that the requirements of § 8-43-301 are jurisdictional in nature, and if there is a failure to comply with the requirements of this section there can be no subsequent appeal. See Schneider Nat'l Carriers, Inc. v. Industrial Claim Appeals Office, 969 P.2d 817 (Colo. App. 1998); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo. App. 1991); London Guarantee Acc. Co. v. Sauer 92 Colo. 565, 22 P.2d 624 (Colo. 1933) (petition to review serves same purpose that motion for a new trial does in a court, calling attention to concrete matters so any errors indicated may be corrected and defines limits of inquiry; any errors or objections not specified in petition not considered in subsequent proceedings).
Here, a petition to review was timely filed by the claimant. However, the petition to review only states as follows: "The claimant petitions for review the corrected order of the Administrative Law Jude (ALJ) Jones mailed or served on February 2, 2011." The petition to review contains no mention of the order entered by ALJ Friend dated June 15, 2010. The rest of the petition to review contains only general allegations of error derived from § 8-43-301(8) C.R.S. The brief filed in support of the claimant's petition to review does argue that ALJ Friend's order dated June 15, 2010 was in error. However, the brief was not filed within the 20-day period required by § 8-43-301, and therefore the brief cannot serve as a substitute for the petition to review. The claimant, having failed to meet the requirements of § 8-43-301 in order to seek review of ALJ Friend's June 15, 2010 order, deprives us of the ability to grant any appellate relief regarding that order.
IT IS THEREFORE ORDERED that ALJ Jones' order dated February 1, 2011 is set aside and the matter is remanded for a determination of the amount of the attorney fees and costs to be imposed and against whom they should be assessed. IT IS FURTHER ORDERED that we lack jurisdiction to review an order entered by ALJ Friend dated June 15, 2010.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
MAY B MCCORMICK, DENVER, CO, (Claimant).
EXEMPLA HEALTHCARE, Attn: MICHELLE HORNING, C/O: EMPLOYEE OCCUPATIONAL HEALTH SERVICES, WHEAT RIDGE, CO, (Employer).
SEDGWICK CLAIMS MGMT SERVICES, INC, Attn: LORI HASTY, GREENWOOD VILLAGE, CO, (Insurer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
LEE KINDER, LLC, Attn: THOMAS L. KANAN, ESQ./MATTHEW SWIHART, ESQ., DENVER, CO, (For Respondents).
SEDGWICK CLAIMS MGMT SERVICES, INC., Attn: DEBBIE BAIRD, GREENWOOD VILLAGE, CO, (Other Party).