W.C. No. 3-114-612Industrial Claim Appeals Office.
October 16, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which denied and dismissed his claim for workers’ compensation benefits. We affirm.
The claimant filed for workers’ compensation benefits in connection with injuries sustained in 1994 during his employment for the respondent. The respondent moved to dismiss the claim on grounds that it is a “common carrier by railroad” as defined in § 40-1-102 C.R.S. (1995 Cum. Supp.), and pursuant to § 8-41-201 C.R.S. (1995 Cum. Supp.), is not subject to the Colorado Workers’ Compensation Act (Act). Section 8-41-201 states that:
The provisions of articles 40 to 47 of this title shall not apply to common carriers by railroad
but shall apply to all other employers as defined in said articles engaged in intrastate or interstate commerce, or both, except those employers, . . . . for whom a rule of liability is established by the laws of the United States.” (Emphasis added).
The claimant argued that the legislative history of § 8-41-201
reflects the General Assembly’s intent to coordinate the Colorado workers’ compensation laws with the federal laws concerning liability for injuries to railroad employees. Therefore, the claimant reasoned that the Act is intended to apply to all railroad employers which are not subject to federal workers’ compensation liability. In so doing, the claimant noted that, under the 1935 version of the predecessor to § 8-41-201, the Act was inapplicable to “common carriers engaged in interstate commerce.”See Colo. Stat. Annot. 1935, ch. 97 § 289; and 1941 Colo. Sess. Laws, ch. 240 at 932. The claimant also asserted that all railroads were engaged in interstate commerce at that time.
The claimant further contended that in a separate action involving the same parties, his claim for benefits under the Federal Employers Liability Act (FELA), was denied because the United States District Court determined that the respondent is not engaged in interstate commerce, and thus, is not covered by the FELA. Therefore, the claimant took the position that §8-41-201 must be construed to mean that the Act is applicable to “common carriers by railroad,” such as the respondent, which are not engaged in interstate commerce.
The ALJ rejected the claimant’s argument and applied § 8-41-201 as written. The ALJ determined that § 8-41-201 expressly excludes “common carriers by railroad,” and that the parties presented no factual dispute which required an evidentiary hearing. Therefore, the ALJ concluded as a matter of law that the respondent is not subject to the Act, and the claim must be dismissed for lack of jurisdiction.
The claimant’s Petition for Review asserts general allegations of error as listed in § 8-43-301(8), C.R.S. (1995 Cum. Supp.). The claimant also alleges that the ALJ “acted without and in excess” of her authority in dismissing the claim. We disagree, and because the claimant did not submit a brief in support of his Petition the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The principles of statutory construction require that statutes be construed in such manner as to further the legislative intent for which they were enacted. Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). To discern the intent of the General Assembly, we must first examine the language of the statute. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1995). In so doing, words and phrases should be given their plain and ordinary meaning unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259, 862 P.2d 259 (Colo. 1993); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Furthermore, if the statutory language is clear and unambiguous, it is unnecessary to resort to the rules of statutory construction, including reference to the statute’s legislative history. Husson v. Meeker, 812 P.2d 731 (Colo.App. 1991).
We agree with the ALJ that the plain and ordinary meaning of §8-41-201 is clear and unambiguous. The term “shall” means a mandatory action. Aren Design, Inc. v. Becerra, supra. Where the term is followed by a negative, it means that the prescribed action is precluded. Section 8-41-201 provides that the Act “shall not apply to common carriers by railroad.” Therefore, the ALJ is precluded from applying the provisions of the Act to “common carriers by railroad.”
The Colorado Constitution Article XV, section 4 states that “all railroad companies shall be common carriers.” Furthermore, § 40-1-102(3) defines “common carrier” as “every person directly or indirectly affording a means of transportation, or any service or facility in connection therewith within this state by railroad.” Consequently, we agree with the ALJ that the plain meaning of the language in § 8-41-201 reflects the General Assembly’s intent to exclude all railroad companies from the provisions of the Act, and the statute must be applied as written. See Aren Design, Inc. v. Becerra, supra.
Moreover we have no authority to read nonexistent provisions into the Act. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). As a result, we must reject the claimant’s argument that the phrase “common carriers by railroad” means railroads engaged in interstate commerce or otherwise subject to the FELA.
Here, the claimant does not dispute that the respondent is a railroad company, or that the respondent is a “common carrier” as defined in §40-1-102(3). Consequently, the ALJ did not err in her determination that the respondent is exempt from the provisions of the Act. Further, the ALJ’s determination supports a conclusion that the ALJ lacked jurisdiction over the claim. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). Therefore, we perceive no reversible error in the ALJ’s order of dismissal. Sections 8-43-301(8) and 8-43-207(1), C.R.S. (1995 Cum. Supp.); see also Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).
For its part, the respondent contends that the claimant’s appeal violates § 8-43-301(14), C.R.S. (1995 Cum. Supp.), and therefore, requests an award of costs and attorney fees. We deny the request.
Section 8-43-301(14), states that:
“[T]he signature of an attorney on a petition to review or brief in support thereof constitutes a certificate by the attorney that such attorney has read the petition or brief; that, to the best of the attorney’s knowledge, information, or belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, cause delay or unnecessarily increase the cost of litigation. If a petition or brief is signed in violation of this subsection (14), the director, the administrative law judge, or the panel shall award reasonable attorney fees and costs to the party incurring the fees and costs as a result of the improper actions.”
Relying on Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496
(Colo.App. 1994), we have previously concluded that an appellate brief does not violate § 8-43-301(14) if it is predicated on a rational argument based in law or fact. Sena v. Department of Corrections, W.C. No. 4-147-185, March 2, 1995; Jones v. Chicken-N-Pasta, W.C. No. 4-197-841, February 3, 1995 Waymire v. City of Las Animas, W.C. No. 4-142-136, July 21, 1995. We adhere to our previously stated position.
We are unable to locate any Colorado court case, and the respondent cites none, which addresses the argument presented by the claimant. Nor have we located any case which interprets § 8-41-201 under the unique facts presented here. Under these circumstances, together with Professor Larson’s discussion of the relationship between the history of the FELA and state workers’ compensation laws, the claimant has presented a rational, although not persuasive, argument for the extension or modification of existing law. See A. Larson, Workmen’s Compensation Law, § 91. (1994) Mission Denver, Co. v. Pierson, 674 P.2d 363 (Colo. 1984) (likelihood of prevailing on theory is not dispositive of whether argument is frivolous). Therefore, we cannot say that the claimant’s appeal violates §8-43-301(14). See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Pedlow v. Stamp, 819 P.2d 1110 (Colo.App. 1991).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 2, 1995, is affirmed.
IT IS FURTHER ORDERED that the respondent’s request for costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 16, 1995 to the following parties:
David Corbin, 478 County Road 312, Ignacio, CO 81137
Durango Silverton Narrow Gauge, 479 Main Ave., Durango, CO 81301-5421
John S. Evangelisti, Esq., 1120 Lincoln St., Ste. 711, Denver, CO 80203 (For the Claimant)
Edward T. Lyons, Esq., and M. Brian Cavanaugh, 1625 Broadway, Ste. 1600, Denver, CO 80202
(For the Respondent)
BY: _______________________