W.C. No. 4-310-746Industrial Claim Appeals Office.
May 11, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ calculated claimant’s permanent partial disability benefits based on a whole person medical impairment. We affirm.
It is undisputed that the claimant was a minor at the time of the industrial injury. The respondents argue that, despite §8-42-102(4), C.R.S. 1997, § 8-42-107(8)(d), C.R.S. 1997 required use of the claimant’s actual temporary total disability rate, not the state maximum rate, when calculating the claimant’s permanent disability award.
As all parties recognize, we previously rejected the respondents’ position in the case of Fluck v. Arkansas Valley Seeds, Inc., W.C. No. 4-245-075 (August 25, 1997). None of the arguments presented by the respondents persuade us to alter our holding, and the reasoning in Fluck is adopted here as if fully set forth. (Copy of Fluck in file).
Citing CRCP 11, the claimant argues he is entitled to an award of attorney fees because the respondents’ position is frivolous and interposed for purposes of harassment. However, we deny the request for attorney fees.
Initially, we note that a request for attorney fees is properly made under § 8-43-301(14), C.R.S. 1997, not CRCP 11. In any event, we see no basis for an award of attorney fees. Generally, resort to a judicial forum is not considered frivolous or in bad faith so long as there is a reasonable basis for a party to challenge the ALJ’s order. See Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991). No appellate court has yet resolved the proper relationship, if any, between §8-42-102(4), and § 8-42-107(8)(d). Under such circumstances, we cannot say the respondents’ position is frivolous, even though we disagree with it.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 5, 1997, is affirmed.
IT IS FURTHER ORDERED that the claimant’s request for 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 theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 11, 1998 to the following parties:
Mitchell Harness, 6920 S.W. 92nd, #8, Portland, OR 97223
Sheila Farney, Skyline Guest Ranch, P.O. Box 67, Telluride, CO 81435-0067
American Compensation Insurance Company, RTW Colorado, Inc., Attn: Tracy Adams, 7400 E. Orchard Rd., #3025, Englewood, CO 80111
J. Keith Killian, Esq. and Joanna C. Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
By: _________________________