W.C. Nos. 4-200-716, 4-200-716.Industrial Claim Appeals Office.
August 5, 2008.
ORDER DISMISSING PETITION TO REVIEW
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated April 15, 2008 that denied the respondents’ request that a lump sum order of the Director of the Division of Workers’ Compensation (Director) be set aside. However, in another order issued in this claim we have reversed the Director’s order requiring the respondents to pay a lump sum of $60,000. In our view that renders the issues raised by ALJ Friend’s order regarding the lump sum moot. Because we believe the issues raised in this appeal are moot, we dismiss the petition to review.
A hearing was held on the issues of whether the amendments to the lump sum statute, 38-43-406, C.R.S. 2007, are retroactive, whether the Director had jurisdiction to determine the amount of the lump sum, and whether the Director’s order is final. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows, and which are based upon the stipulation of the parties. The respondents filed a final admission of liability on July 19, 2007, and on August 6, 2007, the claimant filed a request for a lump sum payment in the amount of $60,000. That motion was granted. Because of an overpayment calculation that needed to be completed, the respondents sought and obtained an extension of time within which to make to calculations of the lump sum. On September 12, 2007, the respondents filed an unopposed motion to hold the lump sum payment in abeyance until the necessary calculations were completed by stipulation or order. The parties reached a stipulation regarding the amount of the overpayment, which was approved by the Director.
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On December 20, 2007, the respondents filed an application for hearing with the Office of Administrative Courts (OAC) on the issues of the retroactivity of 38-43-406, and whether the claimant is entitled to a lump sum payment greater that $37,560. On January 26, 2008, the respondents paid the claimant a lump sum of $37,560 and the claimant filed a motion for payment of a lump sum of $60,000. The respondents then moved to recuse the Director, who denied that motion. The respondents moved for summary judgment on March 11, 2008, and on March 27, 2008, the Director issued an order to the respondents requiring them to pay the requested $60,000 lump sum. A subsequent motion to reconsider was denied. ALJ Cain then entered an order denying the respondents’ motion for summary judgment, concluding that the respondents were not entitled to judgment as a matter of law. ALJ Cain concluded that an issue of fact existed regarding whether the respondents invoked the jurisdiction of OAC before the Director asserted jurisdiction.
Based upon the stipulated facts, the ALJ here ruled that “[t]he Director . . . has ruled in this matter” and that there was no provision in the law permitting an OAC ALJ to review and reverse an order of the Director. He concluded that jurisdiction to review the Director’s order did not lie with OAC, but rather with the Industrial Claim Appeals Office. The ALJ also concluded that the proper lump sum payable in this case was $60,000, because the final admission was filed after the effective date of the amendments to 38-43-406. The order stated that “[i]t is therefore ordered that the Directors’ (sic) determination of the lump sum to be paid is not set aside.” Findings of Fact, Conclusions of Law, and Order at 6.
The respondents appealed the ALJ’s order and make three arguments in support of the appeal. First, they argue that the ALJ erred in concluding that the amendments to 38-43-406 were retroactive and that the lump sum of $60,000 applied to this case. Second, they argue that the Director never had jurisdiction to grant or deny a lump sum in this case. Third, they argue that if the Director did have jurisdiction he should have recused himself.
However, the respondents separately appealed the Director’s order to pay a lump sum of $60,000, and in a separate final order we reversed and vacated the Director’s lump sum order. Because the relief requested by the respondents here was that the ALJ would set aside the Director’s order, the respondents have been afforded that relief in the other proceeding. Hence, there is no relief that may be afforded in this proceeding that the respondents have not already received.
An issue is moot when a judgment, if rendered, would have no practical legal effect upon an existing controversy. Rudnick v. Ferguson, 179 P.3d 26
(Colo.App. 2007);
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Gresh v. Balink, 148 P.3d 419 (Colo.App. 2006); American Family Mutual Insurance Co. v. Centura Health, 46 P.3d 490 (Colo.App. 2002). See also City and County of Denver v. Eat Out, Inc., 75 P.3d 1141 (Colo.App. 2003) (central issue in determining mootness is whether a change in the circumstances that prevailed at the beginning of litigation has forestalled the prospect for meaningful relief).
Here, a final order adjudicating the merits of this appeal could have no practical effect on the controversy over the amount of the lump sum payable. Hence, we conclude the matter is moot and the petition to review should be dismissed. See Montezuma Well Service, Inc. v. Industrial Claim Appeals Office, 928 P.2d 796 (Colo.App. 1996) (announcement by the court of appeals of Romero v. Industrial Claim Appeals Office and subsequent affirmance by Colorado Supreme Court rendered those issues moot).
Finally, we note that it is true that the ALJ concluded that the Director was correct in ordering a lump sum in the amount of $60,000; however, as we read the ALJ’s order, that statement was dicta. Although we believe that the ALJ was in error in concluding that the correct lump sum was $60,000, we do not read his order as requiring payment of that amount, except insofar as the ALJ declined to disturb the Director’s order. As noted previously, that portion of the order granting or denying relief (and entitled “Order”) merely states that “[i]t is therefore ordered that the Directors’ (sic) determination of the lump sum to be paid is not set aside.” The basis for the ALJ’s refusal to set aside the Director’s order was the ALJ’s conclusion that he had no jurisdiction to review any order of the Director. Rather, he concluded that jurisdiction to review and possibly reverse the Director’s order lay with the Industrial Claim Appeals Office and not with an ALJ employed by OAC. In our view, the ALJ’s order merely leaving in effect the Director’s order is significantly different from an order that the respondents were liable for payment of $60,000 in a lump sum. The ALJ did not order such a payment and we do not read his order as requiring that. Therefore, as noted, the respondents’ appeal is moot.
IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated April 15, 2008, is dismissed as moot.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
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MITZIE M TADLOCK, ALBUQUERQUE, NM, (Claimant)
GOLD MINE CASINO, GOLDEN, (Employer)
WESTERN GUARANTY FUND SERVICES, Attn: MICHAEL KRAMISH, DENVER, CO, (Insurer)
SULLIVAN SULLIVAN AND MCGUIRE PC, C/O: PETER H. MCGUIRE, ESQ., DENVER, CO, (For Claimant)
MCELROY, DEUTSCH, MULVANEY CARPENTER LLP, Attn: KRISTIN A. CARUSO, DENVER, CO, (For Respondents)
RELIANCE INSURANCE CO, Attn: CLAIRE BENNETT, ENGLEWOOD, CO, (Other Party)
DIRECTOR, Attn: BOB SUMMERS, C/O: DIVISION OF WORKERS’ COMPENSATION, DENVER, CO, (Other Party 2)
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