W.C. No. 4-163-653Industrial Claim Appeals Office.
June 8, 2000
FINAL ORDER
The respondents’ former attorney (the attorney) seeks review of an order of former Administrative Law Judge Wells (ALJ Wells) dated July 3, 1996, and an order of ALJ Stuber dated October 12, 1999, which required her to pay penalties. We dismiss the attorney’s appeal of the July 3 order and affirm the October 12 order.
The claimant suffered a compensable injury in 1992. In 1996, the claimant sought an order imposing penalties against the attorney for violating the Rules of Procedure, Part IV(M)(2), 7 Code Colo. Reg. 1101-3 at 6.01, which provides that a written report must be produced and exchanged with all parties where the claimant participates in a vocational evaluation.
In the order dated July 3, 1996, ALJ Wells found that the attorney willfully violated Rule IV(M)(2) when she issued a letter dated April 5, 1995, which instructed a vocational rehabilitation consultant not to prepare a written report of a vocational evaluation performed on March 28, 1995. ALJ Wells also found that the violation was prejudicial to the claimant and continued until January 3, 1996, when the claimant discovered the consultant’s opinions during a discovery deposition. Further, ALJ Wells found that the attorney failed to comply with an order entered on October 24, 1994, which required that all further motions be filed with him. However, the ALJ declined to impose any penalties for the violations.
The claimant timely appealed the July 3 order, and argued that under the statutory language currently codified at §8-43-304(1), C.R.S. 1999, ALJ Wells was compelled to assess a penalty for the attorney’s violations. In an order issued on August 15, 1997, we concluded that § 8-43-304(1) does not permit an ALJ to excuse a violation by declining to impose a penalty. Therefore, we set aside the July 3 order insofar as it denied the claimant’s request for penalties, and remanded the matter for a determination of the amount of penalties to be imposed against the attorney for the violations found by ALJ Wells. In so doing, we expressly noted that the attorney had not appealed ALJ Wells’ order. Consequently, the issue of whether the record supported ALJ Wells’ finding that the attorney violated the October 24 order and violated Rule IV(M)(2) was not preserved for appellate review. Similarly, there was no assertion that ALJ Wells applied an incorrect legal standard in finding that the attorney was subject to penalties. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995) (penalties governed by negligence standard).
Following our remand, ALJ Wells ceased to be employed by the Division of Administrative Hearings, and the matter was reassigned to ALJ Stuber. In an order dated October 12, 1999, ALJ Stuber ordered the attorney to pay penalties at the rate of $20 per day from April 4, 1995, to January 3, 1996, for her violation of Rule IV(M)(2). In support, ALJ Stuber found that the claimant expended $400 deposing the vocational rehabilitation consultant on January 3, 1996, to obtain the opinions which had not been disclosed for 274 days. ALJ Stuber also found that the claimant’s suspicion and mistrust of the workers’ compensation system and the vocational consultant was increased by the attorney’s violation, and was ultimately terminal to the respondents vocational rehabilitation efforts. ALJ Stuber further imposed a penalty of $1 for the attorney’s failure to comply with ALJ Wells’ order dated October 24, 1994.
On October 27, 1999, the attorney filed a petition to review ALJ Stuber’s order. The attorney also petitioned for review of the July 3 order. On appeal, the attorney argues that ALJ Wells violated her due process rights by hearing the penalty issue on June 27, 1996. The attorney also contends ALJ Wells erred as a matter of fact and law in finding a violation of Rule IV(M)(2), and that ALJ Wells failed to apply the proper legal standard in determining that she is subject to penalties. Further, the attorney contends that the October 1994 order was not a “lawful” order and therefore, her violation of the order does not support the imposition of a penalty under § 8-43-304.
Insofar as the attorney now seeks review of ALJ Wells’ order dated July 3, 1996, we lack jurisdiction to review the order. Section 8-43-301(2), C.R.S. 1999, provides:
“Any party dissatisfied with an order which requires any party to pay a penalty or benefits or denied a claimant any benefit or penalty may file a petition to review. . . . Such petition shall be filed within twenty days from the date of the certificate of mailing of the order, and unless so filed, such order shall be final.” (Emphasis added).
ALJ Wells’ July 3 order denied the claimant a penalty. Therefore, contrary to the attorney’s argument, the July 3 order was a final order on the issue of penalties, which was subject to review.
Admittedly, the July 3 order was favorable to the attorney insofar as it did not actually impose a penalty. However, ALJ Wells made findings concerning the attorney’s violations which were adverse to the attorney’s position, and insofar as the attorney was dissatisfied with that aspect of the final order, she was required to file a petition to review within twenty days in order to preserve her right to obtain review of those issues. See Reynolds v. Miller, W.C. No. 4-331-1168 (January 16, 1998) aff’d., Reynolds v. Industrial Claim Appeals Office, (98CA0232, November 27, 1998) (not selected for publication) (every party dissatisfied with order must file petition to review).
The attorney did not file a timely petition to review the July 3 order. By remaining silent when it was her duty to speak, the attorney consented to ALJ Wells’ findings of fact and conclusions of law concerning the attorney’s violations. See Stearns-Roger Manufacturing Co. v. Casteel, 261 P.2d 228 (Colo. 1953). Therefore, we have no authority to review those aspects of the July 3 order, and must dismiss the attorney’s petition to review that order. See Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984).
Similarly, we may not consider the attorney’s contention that the record fails to support ALJ’s Stuber’s imposition of penalties from April 5, 1995 to January 3, 1996. ALJ Wells previously determined that the attorney’s violation began when the attorney sent the April 5 letter to the vocational consultant and continued until January 3, 1996. The attorney did not timely appeal that determination. Further, our order of remand did not direct ALJ Stuber to redetermine the penalty period. Rather, ALJ Stuber was merely ordered to determine the amount of penalties to be imposed for the violations cited by ALJ Wells. See § 8-43-304.
IT IS THEREFORE ORDERED that ALJ Stuber’s order dated October 12, 1999, is affirmed.
IT IS FURTHER ORDERED that the attorney’s petition to review the order dated July 3, 1996, is dismissed with prejudice.
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. 1999. 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 June 8, 2000
to the following parties:
Arnulfo Ramos, c/o Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484
Wal-Mart Stores, Inc., P. O. Box 116, Bentonville, AR 72712-0116
Emily Smith, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72716-1288
Subsequent Injury Fund — Interagency Mail
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
Marsha Kitch, Esq., 999 18th St., #3100, Denver, CO 80202
Fred Ritsema, Esq., 999 18th St., #3100, Denver, CO 80202 (For Attorney Kitch)
John Baird, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Division of Workers’ Compensation)
By: A. Pendroy