W.C. No. 4-390-792Industrial Claim Appeals Office.
August 19, 2002.
FINAL ORDER
The claimant filed petitions to review orders of Administrative Law Judge Henk (ALJ) dated November 7, 2001, and December 26, 2001. We conclude the claimant lacks standing to challenge the award of attorney fees against his attorney, and that the orders are not otherwise final and appealable.
The claimant applied for a hearing on the issues of “compensability,” medical benefits, disfigurement, and penalties. A hearing was scheduled for October 24, 2001, and the issue of penalties was stricken on September 6, 2001.
Neither the claimant nor claimant’s attorney appeared at the October 24 hearing. At the hearing, counsel for the respondents advised the ALJ that, pursuant to directions issued at a prehearing conference, she had advised claimant’s counsel on October 4 that she would not agree to vacate the hearing based on certain legal arguments. Counsel for the respondents further advised the ALJ that on the day before the hearing, counsel for the claimant called and stated he could not attend the hearing because he was required to be in another court. Counsel for the respondents requested the ALJ to enter an order directing claimant’s counsel to pay the expert witness fee of $1139.25 for the physician which respondents subpoenaed to the hearing, and for an order directing the claimant to show cause why the claim should not be dismissed.
On November 7, 2001, the ALJ entered an order directing claimant’s attorney to pay the expert witness fees and directing the claimant to show cause within 30 days why the claim should not be dismissed. The claimant, through counsel, filed a petition to review asserting general allegations of error and that the findings and conclusions were insufficient to justify dismissal of the claim.
Counsel for claimant also filed a response to the order to show cause. Counsel for claimant represented that counsel for the respondents had misunderstood the reason that he sought to vacate of the hearing, and the real reason was his conflict with another court appearance. Counsel also alleged there was no need for the expert’s testimony and the fee was not reasonable.
On December 26, 2001, the ALJ entered an Order determining that claimant’s counsel demonstrated good cause for failure to attend the hearing based on his conflict with the other court appearance. Consequently, the ALJ vacated the show cause order, but stated the “Order of November 7, 2001, directing Claimant’s counsel to pay the expert witness fees” would remain “in full force and effect and not be affected” by the December order.
The claimant filed a petition to review the December 26 Order. The petition contains only general allegations of error and reiterates the contention that the findings and conclusions are insufficient to warrant dismissal of the claim. The claimant has not filed a brief in support of either petition to review.
Insofar as either petition to review can be construed as contesting the assessment of expert witness fees against claimant’s attorney, we hold the claimant is without standing to raise this argument. Both petitions were filed by the claimant “through” his attorney. In both petitions, the claimant requested relief. There is no indication that claimant’s counsel joined in the petitions or filed separate petitions to review the orders.
Here, neither order imposes any obligation on the claimant to pay the witness fees. Instead, that obligation was placed solely on claimant’s counsel. Under these circumstances the claimant does not have standing to challenge the imposition of fees on his attorney. To the extent counsel wished to challenge the award of fees, he should have intervened and asserted his defenses, if any. See Adams v. Neoplan U.S.A. Corp., 881 P.2d 373 (Colo.App. 1993). Since no party with standing has challenged the award of witness fees, we need not consider the petitions to review insofar as they may be construed as addressing that issue.
To the extent the orders address the issue of dismissal of the claim, they are not final and reviewable. In fact, the ALJ declined to dismiss the claim and indicated that either party may file an application for hearing. Consequently, neither order requires the payment of benefits or penalties, nor does either order deny the claimant any benefit or penalty. Consequently, neither order is final and reviewable. Section 8-43-301(2), C.R.S. 2001; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989).
IT IS THEREFORE ORDERED that the petitions to review the orders dated November 7, 2001, and December 26, 2001, are dismissed with prejudice insofar as they pertain to the award of witness fees.
IT IS FURTHER ORDERED that the petitions to review are otherwise dismissed without prejudice.
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. 2001. 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 August 19, 2002 to the following parties:
Raymond A. Dyer, 1225 4th St., Eaton, CO 80615
Panhandle Eastern/Panenergy, Human Resources Dept., 6075 WCR 19, Ft. Lupton, CO 80621
Laurie Iverson, Adjuster, Twin City Fire Insurance Company, P. O. Box 221700, Denver, CO 80222
Richard K. Bludell, Esq., and John M. Connell, Esq., 1020 9th St., Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado