W.C. No. 4-142-136Industrial Claim Appeals Office.
July 21, 1995
FINAL ORDER
This matter is before us on the respondents’ “Motion for Attorney Fees.” We deny the motion.
On June 23, 1995, we issued a Final Order. In that order, we rejected the claimant’s argument that it is proper to award contemporaneous permanent total disability benefits and “medical impairment benefits” under § 8-42-107(8), C.R.S. (1994 Cum. Supp.).
In the Motion for Attorney Fees, the respondents argue that the claimant’s appeal was “frivolous” because “medical impairment benefits” have been equated to “permanent partial disability benefits.” In support of this position, the respondents cite the Supreme Court decisions in City of Thornton v. Replogle, 888 P.2d 782, (Colo. 1995) and Duran v. Industrial Claim Appeals Office, 883 P.2d 477(Colo. 1994).
Section 8-43-301(14), C.R.S. (1994 Cum. Supp.) indicates that attorney fees should not be awarded if a party makes a “good faith argument for the extension, modification, or reversal existing of law.” An appeal is “frivolous” if there is no rational argument, based in the law or the evidence, which could support the appeal. Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496 (Colo.App. 1994).
Here, none of the cases cited by the respondents considers the exact issue which was presented to us on appeal. Consequently, there is no binding precedent resolving the issue presented by the claimant, and the claimant’s argument is properly viewed as one involving the modification of existing law.
It is true that the developing case law interpreting § 8-42-108(8) tends to refute the position taken by the claimant, and we so held. However, in the absence of binding precedent, and considering that the case law interpreting § 8-42-108(8) is in an evolutionary phase, we do not consider the claimant’s appeal to be frivolous. See Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995) (case interpreting scope of § 8-42-108 which was decided after claimant’s appeal reached us).
IT IS THEREFORE ORDERED that the respondents’ Motion for Attorney Fees is DENIED.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1990 Cum.Supp.).
Copies of this decision were mailed July 21, 1995 to the following parties:
Ronald E. Waymire, 731 McBride, Las Animas, CO 81054
City of Las Animas, 532 Carson Ave., Las Animas, CO 81054
Subsequent Injury Fund, Attn: Barbara Carter (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Douglas A. Thomas Esq. (Interagency Mail)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
By: _____________________