W.C. No. 3-683-782Industrial Claim Appeals Office.
March 4, 2002
FINAL ORDER
The petitioner, Joseph J. Lenihan (attorney) seeks review of orders of the Director of the Division of Workers’ Compensation (Director) dated August 28, 2001, and September 27, 2001. We affirm.
The record reveals that on November 22, 1982, the claimant suffered a compensable injury. The claimant and the attorney entered into a contingency fee agreement in 1983. Pursuant to the fee agreement, the attorney represented the claimant for several years and during that representation the respondents admitted liability for permanent total disability benefits at the rate of $92 per week. However, settlement negotiations were unsuccessful and the claimant’s requests for a lump sum award of permanent total disability benefits were denied.
In 1997 the claimant entered into a full and final settlement with the respondents for a lump sum payment of approximately $80,000. Attorney Charles Mauloff (Mauloff) represented the claimant in the settlement.
There was no further action on the claim until June 26, 2001, when the attorney filed a “Petition of Attorney for Redress.” The petition requested damages of $20,000 based on the contingent fee agreement or a quasi-contract for the reasonable value of the attorney’s legal services. The attorney also requested a “monetary judgment, award, decision or otherwise” against the insurer, Mauloff, and the claimant for conspiracy to commit fraud, breach of contract, and tortious interference with the contingent fee agreement. The attorney also alleged the insurer acted in bad faith and Mauloff violated constitutional due process by neglecting to inform the attorney of the settlement negotiations.
The attorney requested a hearing in the Division of Administrative Hearings (DOAH). In a pre-hearing order dated August 6, 2001, the petition for redress was referred to the DOAH. However, in an order dated August 13, 2001, the Director rescinded the pre-hearing order. Subsequently, in orders dated August 28, 2001 and September 27, 2001, the Director entered summary judgment which denied and dismissed the petition for redress.
The Director found that the request for attorney fees was governed by § 8-43-403(1), C.R.S. 2001. That statute provides in pertinent part:
At the request of either an employee or the employee’s attorney, the director shall determine what portion of the benefits awarded were contested, or the reasonableness of the fee charged by such attorney, or both. . . . No request for determination of the reasonableness of fees shall be considered by the director if received later than one hundred eighty days after the issuance of the final order, judgment, or opinion disposing of the last material issue in the case and the expiration of any right to review or appeal therefrom. (Emphasis added)
Here, the order which disposed of the last material issue in the case was the 1997 order approving the full and final settlement of the claim. However, the petition for redress was not filed until June 26, 2001. Under these circumstances, the Director determined as a matter of law that the request for attorney fees was barred by the 180-day statute of limitations in § 8-43-403(1). The Director also determined that the attorney’s additional claims were in the nature of tort and beyond the subject matter jurisdiction of the Workers’ Compensation Act (Act).
On appeal, the attorney contends, inter alia, that § 8-43-403(1) is not applicable to the 1983 contingency fee agreement at issue here. Alternatively, the attorney contends the 180-day statute of limitations in § 8-43-403(1) was tolled because he did not have notice of the settlement until August 2000, and he was not at fault for the lack of notice. Further, the attorney argues the Director abused her discretion in denying the petition without affording him an evidentiary hearing. We are not persuaded by these arguments.
Initially, we reject the attorney’s contention that § 8-43-403(1) is not applicable to this claim. Section 8-43-403(1) became effective July 1, 1990. See 1990 Colo. Sess. Laws, Ch. 62. The statute was amended to its current form effective May 29, 1991. See 1991 Colo. Sess. Laws, ch. 230 at 1369. Neither enactment was limited to fee agreements created after the effective date of the statute. Further, the statute is procedural or remedial in nature, and therefore is applicable to existing claims. See Continental Title Co. v. District Court, 645 P.2d 1310
(Colo. 1982).
Next, an evidentiary hearing is not required where the alleged facts, even if true, would not provide a basis for granting the requested relief. Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387
(1969); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). Accordingly, the Director may enter summary judgment where the dispositive issue involves an issue of law, not fact. In so doing, the party against whom the summary judgment is entered is entitled to the benefit of all favorable inferences that may be drawn from the facts stated in the record . Brawner-Ahlstrom v. Husson, 969 P.2d 738
(Colo.App. 1998).
Here, the attorney conceded he had actual notice of the 1997 settlement no later than August 2000. Assuming, arguendo, that the statute of limitations was tolled by the failure of the insurer, Mauloff, and the claimant to notify the attorney of the settlement, the statute of limitations nevertheless commenced by August 2000 when the attorney had actual notice. Consequently, under any reading of §8-43-403(1) the attorney was required to file the claim for attorney fees within 180 days of August 2000, or no later than March 2001. The attorney’s petition was not filed until June 26, 2001. Therefore, even if the statute of limitations was tolled until the attorney had actual notice of the settlement, the petition is untimely and barred by§8-43-403(1). Consequently, the Director did not err in denying the petition.
It follows that any error by the Director in rescinding the pre-hearing order that referred the claim to the DOAH was harmless and shall be disregarded. See § 8-43-310 C.R.S. 2001; Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error).
Further, subject matter jurisdiction refers to the power or authority of the court to deal with a particular case. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978). The Director’s adjudicative authority is created by statute and her jurisdictional power and authority is limited to what is provided by statute. See Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953). The attorney’s arguments notwithstanding, we agree with the Director that the subject matter jurisdiction of the Act does not extend to the attorney’s claims based on conspiracy to commit fraud, breach of contract, and tortious interference with the contingent fee agreement. Therefore, the Director properly dismissed the remaining claims of the petition for lack of subject matter jurisdiction.
We recognize that under § 8-43-204(1), C.R.S. 2001, the Director may reopen a settlement based upon fraud. However, the attorney is not seeking to reopen the settlement. Rather, the attorney seeks to recover attorney fees based upon the monies paid to the claimant pursuant to the settlement agreement. Therefore, we are not persuaded the Director had authority to adjudicate the attorney’s claim that the insurer, Mauloff, and the claimant conspired to commit fraud.
Insofar as the attorney may be understood as requesting the Director exercise her authority under § 8-43-304(1), C.R.S. 2001, to impose penalties against the insurer, that argument was not raised before the Director. Consequently, it will not be considered for the first time on review. See Carlson v. Industrial Claim Appeals Office, 950 P.2d 663
(Colo.App. 1997) (errors asserted for first time in reply brief will not be addressed on appeal).
The attorney’s remaining contentions have been considered and are without merit.
IT IS THEREFORE ORDERED that the Directors’ orders dated August 28, 2001 and September 27, 2001, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 4, 2002 to the following parties:
Lani Lively-Carthcart, 2016 W. 16th, Pueblo, CO 81003
Parks Trash, Pinnacol Assurance — Interagency Mail
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Joseph J. Lenihan, Esq., P. O. Box 93, Pueblo, CO 81002
Charles J. Malouff, Esq., 1225 N. Grand Ave., #206, Pueblo, CO 81003-2866
Christopher B. Little, Esq., 5445 DTC Pkwy., #800, Greenwood Village, CO 80111 (For Charles J. Malouff, Esq.)
BY: A. Pendroy