W.C. No. 4-390-792Industrial Claim Appeals Office.
April 15, 2003
FINAL ORDER
Attorney Richard Blundell seeks review of an order of Administrative Law Judge Henk (ALJ) which awarded penalties. We dismiss the petition to review as moot.
On November 18, 2002, the respondents moved for the entry of an order against attorney Blundell based on his failure to obey an order to pay witness fees. On December 4, 2002, counsel for the respondents wrote a letter to the Director of the Division of Workers’ Compensation (Director) advising that the respondents had received payment of the witness fee and were withdrawing the motion for penalties. The file does not reflect that the Director objected to withdrawal of the motion, or entered an appearance on behalf of the SIF to independently request penalties against Blundell.
On December 4, 2002, the ALJ signed an order assessing penalties against attorney Blundell. The order was mailed on December 6. Attorney Blundell filed a petition to review on December 11, 2002. On December 19, 2002, counsel for the respondents wrote to an officer at the Subsequent Injury Fund (SIF) noting that the respondents withdrew the request for penalties and stating that the respondents’ position was that the ALJ’s order dated December 4 “should not have been entered.”
Under these circumstances, we conclude the respondents waived the request for penalties by affirmatively expressing their decision to withdraw the claim prior to issuance of the ALJ’s order on December 6. Similarly, the Director waived any request for penalties by failing to take independent affirmative action to seek penalties on behalf of the SIF, and by failing to object to the respondents’ request to withdraw the request for penalties or respond to the letter of December 19. Section 8-46-101(5)(a)(I), C.R.S. 2002 (Director may employ counsel to represent SIF in any action); Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988) (waiver may be explicit, or may be implied where a party acts inconsistently with assertion of a right). Under these circumstances, the ALJ’s order dated December 4 is moot, as is attorney Blundell’s appeal from the order. See Brown v. Department of Corrections, 915 P.2d 1312 (Colo. 1996) (issue is moot when requested relief would have no practical effect on an existing controversy).
IT IS THEREFORE ORDERED that attorney Blundell’s appeal from the ALJ’s order dated December 6, 2002, is dismissed as moot.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 15, 2003 to the following parties:
Raymond A. Dyer, 1225 4th St., Eaton, CO 80615
Human Resources Dept., Panhandle Eastern/PanEnergy, 6075 WCR 19, Ft. Lupton, CO 80621
Twin City Fire Insurance Company, c/o Laurie Iverson, ITT Specialty Risk Services, 110 Woodland Pl., Park City, UT 84098
Richard K. Blundell, Esq., 1020 9th St., Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
Mary Ann Whiteside, Director of the Division of Workers’ Compensation, Tower 2, Suite 400, Interagency Mail
By: A. Hurtado