Youngs v. Indus. Claim Appeals Office of Colo.

Citation297 P.3d 964
Decision Date19 July 2012
Docket NumberNo. 11CA1259.,11CA1259.
CourtCourt of Appeals of Colorado
PartiesPatrick YOUNGS and Chris Forsyth, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, White Moving & Storage, Inc., and Pinnacol Assurance, Respondents.

297 P.3d 964

Patrick YOUNGS and Chris Forsyth, Petitioners,
v.
INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, White Moving & Storage, Inc., and Pinnacol Assurance, Respondents.

No. 11CA1259.

Colorado Court of Appeals,
Div.
II.

May 10, 2012.
As Modified on Denial of Rehearing July 19, 2012.


[297 P.3d 967]


Chris Forsyth Law Office, LLC, Chris Forsyth, Denver, Colorado, for Petitioners.

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.


Harvey D. Flewelling, Denver, Colorado, for Respondents White Moving & Storage, Inc. and Pinnacol Assurance.

Opinion by Judge HAWTHORNE.

¶ 1 In this workers' compensation action, Patrick Youngs and his counsel, Chris Forsyth (collectively appellants), seek review of the final order entered by the Industrial Claim Appeals Office (Panel) affirming the administrative law judge's (ALJ's) order assessing Pinnacol Assurance's 1 attorney fees and costs against Mr. Forsyth, individually, because appellants requested a hearing on an issue which was not ripe for adjudication in violation of section 8–43–211(2)(d), C.R.S.2011. We perceive no basis for disturbing the Panel's ruling and therefore affirm.

¶ 2 This case presents one issue of first impression: whether section 8–43–211(2)(d) requires that reasonable attorney fees and costs be assessed when only one issue, among others raised, in a request for a hearing is not ripe for adjudication at the time such request is made. Based on the statute's plain language and giving proper deference to the Panel's interpretation of it, we conclude that if any person requests a hearing on an issue that is not independently ripe for adjudication when such request is made, even though other ripe issues are raised in the same request, that person must be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing.

I. Procedural History

¶ 3 Mr. Youngs sustained an admitted, work-related injury in March 2005. He was

[297 P.3d 968]

awarded benefits for an eight percent impairment to his left upper extremity and a five percent impairment to his left lower extremity. His claim for permanent, total disability (PTD) was denied by the ALJ, and the order denying PTD was affirmed by the Panel and a division of this court. Youngs v. Indus. Claim Appeals Office, (Colo.App. No. 08CA2209, 2009 WL 3863413, Nov. 19, 2009) (not published pursuant to C.A.R. 35(f)) ( Youngs I) (cert. denied May 24, 2010), cert. denied,––– U.S. ––––, 131 S.Ct. 553, 178 L.Ed.2d 372 (2010).

¶ 4 While the appeal in Youngs I was pending, appellants filed an application for hearing on a “petition to reopen [permanent partial disability (PPD) ] and PTD pursuant to [section] 8–43–303, [C.R.S.2011] fraud/mistake.” In response, employer argued

[Appellants] ha[ve] already had an opportunity to litigate any alleged mistake or fraud ...; ALJ Broniak has already found there was no mistake or fraud. [Employer] allege[s] that endorsing reopening based on fraud or mistake is frivolous in light of ALJ Broniak's order [and] reserve[s] the right to pursue any applicable sanctions, including attorneys fees and/or penalties if applicable.

¶ 5 Although the ALJ agreed that appellants had improperly endorsed the reopening issue and consequently dismissed the petition to reopen, he declined to assess employer's attorney fees and costs against appellants, concluding that, under section 8–43–211(2)(d), all issues endorsed in an application for hearing must be unripe in order for attorney fees and costs to be assessed. Appellants did not appeal the ALJ's determination that endorsing the reopening issue was improper, but employer asked the ALJ to reconsider his denial of its request for attorney fees and costs. When that request was denied, employer sought review before the Panel.

¶ 6 The Panel disagreed with the ALJ's interpretation of section 8–43–211(2)(d). It held that the “plain language of [section] 8–43–211(2)(d) ... require[s] an assessment of fees and costs if a party sets a hearing on any issue that is not ripe for adjudication.” The Panel therefore remanded the “matter for a determination of the attorney fees and costs to be awarded to [employer] as a penalty under [section] 8–43–211(2)(d).”

¶ 7 On remand, a different ALJ held a multi-day hearing concerning the fees employer sought for preparing for hearing on an unripe issue. She found the testimony of employer's legal expert, an attorney with the law firm retained to represent employer, credible and persuasive. The ALJ determined that the rates charged by employer's counsel were reasonable. She therefore assessed attorney fees and costs of $23,308.54 against Mr. Forsyth, individually, pursuant to employer's request.

¶ 8 Appellants filed a petition to review the ALJ's order. The Panel rejected their arguments and affirmed the ALJ's order, concluding that the ALJ did not err and did not abuse her discretion in assessing the attorney fees and costs against Mr. Forsyth.

¶ 9 Appellants now appeal.

II. Ripeness and Attorney Fees and Costs

¶ 10 We first address the final order's merits. Appellants contend that (1) the issues in the petitions to reopen PPD and PTD endorsed in the applications for hearing and notice to set were ripe; (2) even if the issues were not ripe, assessing attorney fees and costs was inappropriate because other issues endorsed in the applications for hearing were ripe; and (3) “the amount of fees awarded [was] erroneous.” We reject all three contentions.

¶ 11 The statute in question here provides:

If any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting.

§ 8–43–211(2)(d).


A. Ripeness of Petitions for Reopening Issues

¶ 12 In January 2008, appellants had petitioned the Panel to review the ALJ's denial of the request for PTD benefits. Appellants filed, in March and July 2008, respectively, two separate applications for hearing and notice to set, each petitioning to “reopen PPD and PTD pursuant to C.R.S. 8–43–303

[297 P.3d 969]

fraud/mistake.” After the ALJ issued a supplemental order, appellants filed a second petition to review. Although these petitions for review are not in the record before us, we take judicial notice of the record filed in conjunction with appellants' earlier appeal in Youngs I. See Bristol Bay Prods., LLC v. Lampack, ––– P.3d ––––, ––––, 2011 WL 5865902 (Colo.App.2011) ( “[A] court may take judicial notice of the contents of court records in a related proceeding.”).

¶ 13 In October 2008, the Panel issued its order affirming the ALJ's PTD and PPD rulings. Appellants appealed the Panel's decision to this court. The division's decision affirming the Panel's ruling, Youngs I, was subsequently issued.

¶ 14 Appellants contend that the issue presented by their petitions to reopen PPD and PTD based on “fraud/mistake” was ripe for adjudication when the applications for hearing were filed. Assuming, without deciding, that appellants properly preserved this ripeness issue, we conclude that the ALJ and the Panel properly determined that the petition to reopen was not ripe when appellants made the request.

¶ 15 An issue is ripe for hearing when it “is real, immediate, and fit for adjudication.” Olivas–Soto v. Indus. Claim Appeals Office, 143 P.3d 1178, 1180 (Colo.App.2006). Conversely, an issue is not ripe and “adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury which may never occur.” Id.

¶ 16 Whether an issue is ripe for review is a legal question that we review de novo. See Timm v. Prudential Ins. Co., 259 P.3d 521, 528 (Colo.App.2011) (“On appeal of a determination of ripeness, we review the trial court's factual findings for clear error and its legal conclusions de novo.”).

¶ 17 Appellants' PTD and PPD claims at issue in Youngs I were not fully adjudicated when appellants filed the applications for hearing containing the petitions to reopen those issues. Indeed, those issues were not fully adjudicated until the United States Supreme Court denied appellants' petition for a writ of certiorari. The PTD and PPD issues were contingent on those appellate rulings, because a final decision in appellants' favor on appeal would have mooted the petition to reopen as to those issues. Therefore, these issues were not ripe for reopening when appellants requested a hearing and filed the notice to set. Cf. Rantz v. Kaufman, 109 P.3d 132, 141 (Colo.2005) (“[F]or the purposes of issue preclusion, a judgment that is still pending on appeal is not final.... ”).

¶ 18 Appellants argue that even though the appeals and the petitions to reopen were pending concurrently, the issues were nevertheless ripe because they were premised on a previously unarticulated theory, namely, that the division-sponsored independent medical examination (DIME) was tainted by the physician's undisclosed existing relationship with Pinnacol.

¶ 19 However, appellants had raised the DIME physician's alleged bias and fraud arising from her prior and continuing relationship with Pinnacol before the ALJ, and that claim was considered in Youngs I. Therefore, appellants' grounds for reopening the PTD and PPD claims were neither novel nor previously unarticulated. Accordingly, the ALJ and the Panel properly concluded that the petitions to reopen issues were unripe.

B. Ripe and Unripe Issues in Applications for Hearing

¶ 20 Appellants contend that even if the issues raised in the petitions to reopen were not ripe, attorney fees and costs should not have been imposed because other issues raised in the applications for hearing were ripe. They argue that section 8–43–211(2)(d)'s language mandating an attorney fees and costs award for endorsing unripe issues...

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