W.C. No. 4-163-653Industrial Claim Appeals Office.
August 15, 1997
FINAL ORDER
The claimant has filed a Petition for Review of an order of Administrative Law Judge Wells (ALJ) dated July 3, 1996. We set aside the order insofar as the ALJ did not impose penalties, and remand for a new order on that issue. We dismiss the remainder of the claimant’s appeal.
The claimant suffered a compensable injury in 1992, and was awarded temporary total and permanent partial disability benefits. In February 1996, the claimant filed a “Motion for Disqualification,” in which he sought an order enjoining the panel of pre-hearing administrative law judges (PALJs) from hearing any issued involving this claim. The claimant also sought an order imposing penalties against the respondents’ former attorney (the attorney).
In his order dated July 3, 1996, the ALJ determined that he lacked jurisdiction to rule on the claimant’s Motion for Disqualification. Therefore, the ALJ denied the Motion for Disqualification and the claimant’s related discovery motions.
On the issue of penalties the ALJ found that the attorney willfully violated the Rules of Procedure, Part IV(M)(2) 7 Code Colo. Reg. 1101-3 at 6.01, and that said violation was prejudicial to the claimant. The ALJ also found that the attorney violated an order entered on October 24, which required all further motions be filed with him. However, the ALJ explicitly declined to impose any penalties for the violations.
I.
The claimant contends that the ALJ’s findings compel the imposition of penalties under § 8-43-304(1), C.R.S. (1996 Cum. Supp.). We agree.
Section 8-43-304(1) provides that the failure to comply with a lawful order, and the failure to perform any duty lawfully enjoined, subjects the violator to a penalty. Furthermore, the court has held that the failure to comply with the Rules of Procedure is a failure to perform a “duty lawfully enjoined” within the meaning of § 8-43-304(1). See Diversified Veterans Corporate Center v. Hewuse, ___ P.2d ___ (Colo.App. No. 96CA0583, January 9, 1997); Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996).
We note that the attorney has not appealed the ALJ’s order, nor has she filed an appellate brief. Consequently, we do not consider whether the record supports the ALJ’s findings that the attorney violated the October 24 order and Rule IV(M)(2). Neither do we consider whether the ALJ’s findings support his implicit determination that the attorney’s conduct was unreasonable. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995) [imposition of penalties under § 8-43-304(1) governed by objective standard of negligence].
Section 8-43-304(1) states that a violator “shall” be punished by imposition of a penalty for each offense. The General Assembly’s use of the word “shall” indicates a mandatory requirement. See Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995); Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989). Consequently, we have previously held that § 8-43-304(1) does not permit an ALJ to excuse a violation by declining to impose any penalty. Meraz v. Metro Ass’n for Retarded Citizens, W.C. No. 4-219-460, February 4, 1997; Marple v. St. Joseph’s Hospital, W.C. No. 3-966-344, September 15, 1995; Gregory v. Ball Aerospace,
W.C. No. 4-176-123, August 31, 1995. Rather, we held in these cases that the statute requires the imposition of a penalty between one cent and five hundred dollars per day for each offense, but the amount of each daily penalty is within the ALJ’s discretion. We adhere to our prior conclusions. Consequently, we hold that the matter must be remanded to the ALJ to determine the amount of penalties to be imposed against the attorney for the violations cited by the ALJ.
In remanding the matter, we recognize that the ALJ expressly stated the reasons he declined to assess penalties against the attorney. These reasons do not relieve the ALJ from imposing penalties, but the ALJ may consider them in determining the amount of the penalties which are appropriate.
II.
The claimant also contests the ALJ’s failure to “disqualify” the PALJs. In support, the claimant contends that PALJs serve in a dual role which results in a conflict of interest. The claimant argues that the effect of this conflict is a denial of due process which requires the disqualification of PALJs from hearing any issue in this case. Alternatively, the claimant requests an order determining that the ALJ has jurisdiction to disqualify PALJs, and remanding the matter to the ALJ for further proceedings on his discovery requests which pertain to the PALJs’ alleged conflict of interest and the Motion for Disqualification.
Our jurisdiction to review the ALJ’s order is restricted by the specifications in § 8-43-301 C.R.S. (1996 Cum. Supp.) Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). Under § 8-43-301(8) we may review the ALJ’s order to determine whether the findings of fact are sufficient to permit appellate review, whether conflicts in the evidence have been resolved, whether the findings of fact are supported by substantial evidence in the record, whether the findings of fact support the order, and whether the order is contrary to the law.
The claimant’s Motion for Disqualification seeks prospective relief. However, § 8-43-301(8) does not afford the Industrial Claim Appeals Office jurisdiction to order injunctive relief based on potential harm which the claimant might sustain if a PALJ were to assume jurisdiction over some hypothetical issue in the future.
Further, our appellate review is limited to “final orders.” Section 8-43-301(2), C.R.S. (1996 Cum. Supp.). A final order is any order which requires the payment of a penalty or benefit, or denies the claimant any benefit or penalty. See Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
Here, the claimant does not assert that the PALJs’ alleged conflict of interest has actually resulted in an erroneous award or denial of any benefit or penalty. Moreover, we note that the orders of PALJs are themselves interlocutory and not subject to appellate review. Orth v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 97CA0297, July 10, 1997); §8-43-207.5(3), C.R.S. (1996 Cum. Supp.). Accordingly, the ALJ’s refusal to grant the Motion for Disqualification is interlocutory, and not subject to our review. Similarly, the denial of the claimant’s discovery motion is interlocutory. Cf American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985) (order regarding discovery was interlocutory until such time as there was order awarding benefits).
Finally, the record reflects that the parties entered into a full and final settlement of the claim, which was approved on August 14, 1996. Consequently, with the exception of the penalty issue which we have resolved above, there are no remaining claims for benefits or penalties. Therefore, the claimant’s request to enjoin PALJs from participating in the case is moot. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (if resolution of issue cannot have any effect upon an existing controversy the issue is moot).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 3, 1996, is set aside insofar as it denied penalties, and the matter is remanded to the ALJ for entry of a new order which determines the amount of penalties to be imposed against the attorney.
IT IS FURTHER ORDERED that the claimant’s appeal of the ALJ’s order denying the Motion for Disqualification and the request for discovery is dismissed for lack of jurisdiction.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 15, 1997 to the following parties:
Arnulfo Ramos, 1824 Lorraine St., Colorado Springs, CO 80906
Wal-Mart Stores, Inc., P.O. Box 116, Bentonville, AR 72712-0116
Claims Management, Inc., Attn: Merry Jones, P.O. Box 1288, Bentonville, AR 72716
Marsha Kitch, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For the Respondents)
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For the Claimant)
John Baird, Attorney General’s Office, 1525 Sherman St., 5th Flr., Denver, CO 80203
By: _______________________________