Section 8-43-211(2)(d) provides, “if any person requests 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.” The Industrial Claim Appeals Office recently issued a very ambiguous decision which appears to hold that the issues for which attorney’s fees may be awarded are based on the circumstances of the case. McCormick v. Exempla Healthcare, W. C. No. 4-594-683 (August 27, 2012).
In McCormick, the respondent filed an Application for Hearing on the issue of the claimant’s entitlement to medical benefits after a certain date. The Industrial Claim Appeals Office found that under the circumstances of the case, the Administrative Law Judge did not have jurisdiction to determine the issue of medical benefits absent a Division IME. Therefore, the claimant set the matter for a second hearing requesting attorney’s fees pursuant to Section 8-43-211(2)(d), arguing that if the Administrative Law Judge did not have jurisdiction to hear the issue of medical benefits without a Division IME, then the issue of medical benefits was not ripe for adjudication when the respondent filed the Application for Hearing. A second Administrative Law Judge eventually awarded the claimant fees and costs in preparing for the hearing on the issue of medical benefits. The Administrative Law Judge also awarded attorney’s fees incurred by the claimant for preparation of the separate issue of Permanent Total Disability benefits, since the Administrative Law Judge determined that the claimant was required to litigate the issue of Permanent Total Disability benefits or claimant would have waived the right to litigate the issue in the future.
The respondent appealed to Industrial Claim Appeals Office, which first determiend that the respondents could appeal only that portion of the award of attorney’s fees incurred by the claimant in preparing for the issue of Permanent Total Disability benefits. The Industrial Claim Appeals Office then concluded that the award of attorney’s fees and costs related to the issue of Permanent Total Disability benefits was inappropriate, stating “We decline to rule that as a matter of law where a person applies for hearing on an unripe issue a party may be reimbursed absolutely all attorney fees and costs incurred in preparing for the hearing. Whether certain attorney fees and costs should be assessed depends on the circumstances.” Thus, Industrial Claim Appeals Office appears to be stating that the question of whether certain attorney’s fees and costs should be assessed is a question of fact. The Industrial Claim Appeals Office then concluded that “under the particular circumstances of this case” the Administrative Law Judge erred by assessing the attorney fees and costs related to the issue of permanent total disability benefits, and then remands the case to the Administrative Law Judge with instructions to calculate attorney’s fees without including the fees and costs associated with the issue of Permanent Total Disability benefits (rather than remanding the case back to the Administrative Law Judge for a determination of the factual question of whether attorney’s fees and costs in this particular case should have included those incurred by claimant in preparing for the issue of Permanent Total Disability benefits). Thus, the Industrial Claim Appeals Office appears to have made a factual finding regarding the appropriateness of particular attorney’s fees, despite having no jurisdiction to make factual findings.
The impact of the case is somewhat ambiguous. Industrial Claim Appeals Office clearly holds that the attorney’s fees which can be awarded to a party preparing for a hearing in which only one issue is unripe for hearing is a factual determination which depends on the circumstances of the case. However, by then remanding the case to the Administrative Law Judge with instructions to remove the award of attorney’s fees incurred preparing for the issue Permanent Total Disability benefits, the Industrial Claim Appeals Office undermines its implied ruling that the issue is one of fact.
