W.C. No. 4-237-851Industrial Claim Appeals Office.
July 2, 2001
FINAL ORDER
The claimant seeks review of an order by Administrative Law Judge (ALJ) Corchado which dismissed her claim for penalties against the respondents’ former attorneys. We affirm.
The claimant suffered an admitted industrial injury in 1994. In a Summary Order dated November 17, 1998, ALJ Stuber ordered a change of physicians to Dr. Plant and ordered the respondents to pay “all reasonable and necessary medical expenses for treatment by Dr. Plant.” Further, ALJ Stuber determined that “occasional chiropractic treatment for temporary relief is especially reasonable and appropriate.” The record does not show that ALJ Stuber’s Summary Order was appealed.
Subsequently, the claimant received chiropractic treatment from Dr. Plant. However, the respondents’ former attorneys took the position that ALJ Stuber did not determine the reasonableness of chiropractic treatment and did not require the payment of any specific medical benefits. Consequently, on the advice of their former attorneys, the respondents refused to pay for treatment provided by Dr. Plant.
In an order dated November 14, 1999, ALJ Mattoon found that ALJ Stuber’s order required the payment of chiropractic treatment by Dr. Plant. ALJ Mattoon also determined the respondents’ refusal to pay for Dr. Plant’s treatment was wrongful, deliberate, intentional, willful, unreasonable and legally unsupportable. However, ALJ Mattoon determined the penalty claim was controlled by § 8-43-401(2)(a), C.R.S. 2000. Therefore, the ALJ assessed a penalty equal to eight percent of the wrongfully withheld medical benefits.
The claimant then applied for a hearing on the issue of penalties against the respondents’ former attorneys. The former attorneys filed a motion to dismiss, which was denied by ALJ Mattoon on January 10, 2000. Another motion to dismiss the application for hearing was filed, and ALJ Corchado issued an order on February 16, 2000, which determined the penalty issue was ripe without need for an evidentiary hearing. ALJ Corchado determined that ALJ Stuber’s order imposed no legal duty on the respondents’ former attorneys, and therefore dismissed the claim for penalties and vacated the claimant’s application for hearing on that issue. This appeal followed.
I.
The claimant first contends that ALJ Corchado exceeded his jurisdiction in effectively reversing ALJ Mattoon’s January 10 order sua sponte. We disagree.
Initially, we note that the claimant’s Designation of Record includes the “entire file maintained by the Division of Workers’ Compensation.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file and our review is limited to the evidentiary record before the ALJ See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but have restricted our review to the record before the ALJ.
ALJ Mattoon’s order denying the respondents’ motion to dismiss did not award or deny any benefit or penalty. Consequently, it was not a final order and was not subject to appellate review. Section 8-43-301(2), C.R.S. 2000; United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). To the contrary, the January 10 order was interlocutory and subject to reconsideration by ALJ Mattoon or another ALJ. Section 8-43-207(1), C.R.S. 200 ; Moore v. 1600 Downey Street. Ltd., 668 P.2d 16 (Colo.App. 1983); Denver Electric Neon Service Corp. v Gerald H. Phipps Inc., 354 P.2d 618 (Colo 1960).
Furthermore, ALJ Corchado did not reconsider matter sua sponte. ALJ Corchado’s order was in response to the second motion to dismiss, which was effectively a motion for reconsideration. While the better practice is for the same ALJ to respond to a motion for reconsideration, we cannot say that, as a matter of law, ALJ Corchado exceeded his authority.
II.
The claimant also contends ALJ Corchado erroneously found that the only basis asserted by the claimant for penalties against the respondents’ former attorneys was the violation of ALJ Stuber’s order. The claimant contends she listed various violations by the respondents’ prior attorneys, including interference with medical treatment and refusal to perform duties lawfully enjoined. In particular, the claimant contends the former attorneys violated § 8-43-402, C.R.S 2000, by forcing the claimant to a hearing on medical benefits where there was no justifiable reason for the insurer’s refusal to provide the medical benefits awarded by ALJ Stuber. The claimant also contends the conduct of the former attorneys violated § 8-43-503(3), C.R.S. 2000. We reject these arguments.
Summary judgment is proper where the alleged facts, even if true, would not present a basis for granting the requested relief Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969). In other words, summary judgment is proper where the moving party is entitled to judgment as a matter of law.
The claimant’s November 17, 1998 application for hearing stated:
“Claimant is seeking penalties at the rate of $500.00 per day under § 8-43-304(1) against attorneys Dworkin, Cairns and Chambers jointly and against attorney Chambers individually for their/his refusal to obey a lawfully issued Order, their/his refusal to perform duties lawfully enjoined and their/his her interference with the Claimant’s medical care. The basis for this penalty claim arose following the issuance of an Order by Administrative Law Judge Stuber on November 17, 1998.”
The claimant’s arguments notwithstanding, ALJ Corchado reasonably inferred that the claimant was seeking penalties in connection with the former attorneys alleged violation of ALJ Stuber’s order.
However, ALJ Stuber’s order did not require any action by the respondents’ former attorneys. To the contrary, the order expressly placed the burden of paying for Dr. Plant’s treatment on the “respondent-insurer.” It is undisputed the former attorneys gave the respondent-insurer advice concerning whether to pay for Dr. Plant’s treatment. However, it was the respondent-insurer’s duty to act, and insofar as the former attorneys gave the respondent-insurer poor advice, that did not compel the respondent-insurer to act accordingly. Consequently, we agree with ALJ Corchado that the even if the claimant’s factual allegations are true, the former attorneys did not violate ALJ Stuber’s order.
Next, § 8-43-402 provides that “anyone who willfully makes a false statement or representation material to the claim” for purposes of obtaining an order, benefit, award, compensation or payment commits a class 5 felony which is punishable under § 18-1-105, C.R.S. 2000. As stated above, the former attorneys only served in the role of legal advisors. Insofar as any false statement or material representation was made for the purpose of avoiding the payment of benefits, it was made by the respondent-insurer. Therefore, the claimant’s allegations do not support a finding that the former attorneys conduct violated § 8-43-402.
Section 8-43-503(3) prohibits employers, insurers, or their representatives from “dictating to any physician the type or duration of treatment or degree of physical impairment.” Again, it was the legal responsibility of the respondent-insurer to provide the reasonable and necessary medical treatment awarded by ALJ Stuber. Section 8-42-101(1)(a), C.R.S. 2000. Accordingly, insofar as the effect of the respondents’ failure to pay for Dr. Plant’s treatment may be construed as dictating Dr. Plant’s treatment in violation of § 8-43-503(3), the respondent-insurer, not its attorney, is subject to penalties.
For these reasons, we conclude there was no error in ALJ Corchado’s dismissal of the application for a hearing on this issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 16, 2000, is 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. 2000. 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 July 2, 2001 to the following parties:
Susan Provo, 1902 W. Cucharras, Colorado Springs, CO 80904
Atmel Corporation, 1150 E. Cheyenne Mountain Blvd., Colorado Springs, CO 80906-4508
Industrial Indemnity, Fremont Compensation Insurance Group, 1471 Shoreline Dr., #200, Boise, ID 83702
Subsequent Insurance Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Crum Forester Group, P.O. Box 5090 TA, Denver, CO 80217-5090
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Patricia J. Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
Larry N. Harris, Esq., 769 W. Littleton Blvd., Littleton, CO 80120 (For Dworkin, Chambers Williams, P.C. and for Gregory K. Chambers, Esq.)
Brent A. Eisen, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
BY: L. Epperson