author: Judge ROTHENBERG.

text:
    Barbara MOCZYGEMBA, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF HEALTH CARE POLICY AND FINANCING, Defendant-Appellee.
    No. 01CA1295.
    Colorado Court of Appeals, Div. I.
    May 23, 2002.

      Colorado Legal Services, Ellen G. Alires-Trujillo, Peter Komlos-Hrobsky, Denver, Colorado, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Laurie A. Schoder, Assistant Attorney General, Denver, Colorado, for DefendanL-Appellee.
   Opinion by

Judge ROTHENBERG.

Plaintiff, Barbara Moezygemba (applicant), appeals the order of the district court affirming the final decision of the Colorado Department of Health Care Policy and Financing (the department), which denied her application for home care services under a Medicaid program. We reverse and remand.

I. Medicaid Program

The state administers a federally funded Medicaid program known as the Home- and Community-based Services for the Elderly, Blind, and Disabled (HCBS). See 42 U.S.C. § 1396n(c)(l) (2000); § 26-4-601, et seq., C.R.S.2001; Weaver v. Colorado Department of Social Services, 791 P.2d 1230 (Colo.App.1990)(interpreting former version of the statute that contained similar language). HCBS provides home care services, such as dressing, bathing, cooking, and cleaning, to persons who otherwise would require institutionalization. See §§ 26-4-602, 26-4-607, C.R.S.2001; Morgan v. Colorado Department of Health Care Policy & Financing, — P.3d-, 2002 WL 392287 (Colo.App. No. 01CA0629, Mar. 14, 2002)(Morgan).

The basic eligibility requirements of HCBS are set forth in § 26^4-606(l)(b), C.R.S.2001, which provides, in relevant part: “Home- and community-based services ... shall be offered only to persons: ... [w]ho are in need of the level of care available in a nursing home_” See also Morgan, supra, — P.3d at- C‘[A]n applicant must have a functional impairment sufficiently severe to require the level of care available in a nursing home.”).

The department’s regulations further provide: “In order for a patient’s functional needs assessment to indicate medical necessity for the skilled and maintenance services available in a nursing facility, the patient must demonstrate that the frequency of need for these services exists at least on a five day a week basis.” Department of Health Care Policy & Financing Reg. No. 8.401.12, 10 Code Colo. Regs. 2506-10 (DHCP & F Reg.).

To qualify for HCBS, an applicant must currently require the quality of care available in a nursing home. See § 26^-606(l)(b); Morgan, supra. A future need for nursing home care should be considered only if the department is contemplating the removal of a person from HCBS who has already been accepted into it. DHCP & F Reg. No. 8.401.17(D) (service dependency regulation).

When an applicant applies to HCBS, a case manager for the Colorado Foundation for Medical Care evaluates the applicant’s physical and mental condition to determine the functional impairment. A reviewing nurse then considers the case manager’s evaluation and assigns a score to the applicant using a point system. An applicant who receives twenty or more points and also satisfies other most-important-needs (MINS) criteria automatically qualifies for admission to HCBS. DHCP & F Reg. No. 8.401.17(A); Morgan, supra.

If an applicant does not automatically qualify, a second reviewer reassesses the application to determine whether the applicant requires nursing home care. DHCP & F Reg. No. 8.401.17(B), (E); see Morgan, supra. If an applicant is denied admission to HCBS, the nurse reviewer may conduct an on-site evaluation of the applicant. DHCP & F Reg. No. 8.401.17(G).

If an applicant is determined to be ineligible for HCBS, he or she may request a hearing by an administrative law judge (ALJ), DHCP & F Reg. No. 8.486.4, whose decision is then reviewed by the department. Section 24-4-105(14)(b)(I), C.R.S.2001. Upon a timely request, the department’s decision is subject to judicial review. Section 24-4-106, C.R.S.2001.

II. Facts

Applicant applied to HCBS in December 1999. She is forty-nine years old and suffers from a number of physical and emotional ailments including gastritis, duodenitis, myal-gia, myositis, obesity, hypertension, and depression.

On her first assessment, she scored insufficient points and did not meet the MINS criteria. This score precluded her automatic acceptance into HCBS and she was then reassessed by a physician pursuant to DHCP & F Reg. No. 8.401.17(B). After a record review, the physician determined she did not qualify for HCBS.

Later, a nurse conducted an assessment of applicant during an on-site visit pursuant to DHCP & F Reg. No. 8.401.17(G), and applicant again received a score below the admission requirement.

Thereafter, a reconsideration panel consisting of two doctors reviewed applicant’s file along with documentation submitted by her physician and mental health counselor. The reconsideration panel concluded she was ineligible for HCBS because, despite her serious health problems, she did not require nursing home level care.

Applicant appealed that determination to an ALJ. After conducting a hearing, the ALJ reversed the decision of the reconsideration panel. The hearing concerned two issues: (1) whether the reconsideration panel’s decision denying applicant’s admission into HCBS was proper; and (2) whether applicant “[i]s ... in need of [HCBS] services ... in order that she not be at risk for nursing facility placement.”

The ALJ made extensive findings of fact regarding applicant’s condition, including that: (1) she has severe mobility problems that the reviewers had minimized, and she appeared at the hearing in a motorized scooter; (2) she was suffering from major depression and cried frequently during the hearing; (3) the depression was “due to her loss of dignity as a human being because she has no one to assist her in mobility, keeping clean, [and] maintaining a clean and livable house”; (4) she has chronic fecal incontinence, and “it sometimes takes [her] 15-20 minutes to get up from the floor after having had a bowel ‘accident’ ”; (5) she had seven episodes of bladder incontinence the week of the hearing; (6) several of the previous reviewers had not seen or examined applicant, and if they had properly considered her bowel and bladder problems, instead of minimizing them, she probably would have received “at least 20 points” which would have automatically qualified her for admission to HCBS under the regulations; (7) she had fallen at least once; and (8) her physical conditions had worsened.

The ALJ further found that “[applicant] is at imminent risk for nursing facility placement [and that] [a]t present, her basic human needs in the area of personal hygiene and daily living are not being adequately met to a point where [she] can pursue life with a modicum of human dignity” (emphasis added).

Based on these findings, the ALJ entered the following conclusions of law:

Based on the totality of the evidence at the ALJ hearing, [the department] has failed to prove, by a preponderance of the evidence, that [applicant] does not require [HCBS] services ... in order to prevent the imminent risk of [applicant’s] nursing facility placement. ... The ALJ concludes that without [HCBS] services ... [applicant] would be certified as eligible for placement in a nursing facility, on an imminent basis, because she is at risk. Therefore, she qualifies for [HCBS] services .... (emphasis added)

On review, the department reversed the ALJ’s decision, concluding the ALJ had applied an erroneous standard in assessing applicant’s eligibility for HCBS and had misinterpreted the regulations. The regulations require that, in order to be admitted to HCBS, an applicant must have a current need for nursing home care. According to the department, “the ALJ’s conclusions of law incorrectly apply an imminent risk-of-deterioration standard,” which is the standard under the service dependency regulation, DHCP & F Reg. No. 8.401.17(D).

The district court affirmed the department’s decision.

III. Applicant’s Contention

Applicant contends the district court erred in affirming the department’s final decision. She maintains that the ALJ applied the correct legal standard in determining her eligibility for HCBS and that the ALJ’s order should have been upheld by the department on review. We agree.

If a reviewing court finds an agency decision to be contrary to law or unsupported by substantial evidence in the record, it shall set aside the decision. Section 24-4-106(7), (11), C.R.S.2001.

We must give deference to and accept the department’s interpretation of its own regulations provided that it has a reasonable basis in law and is warranted by the record. Morgan, supra.

The department’s authority to review and to set aside an ALJ’s findings also turns on whether they concern evidentiary or ultimate facts.

Evidentiary facts are the detailed factual or historical findings upon which a legal determination rests. An ALJ’s finding of evidentiary fact cannot be set aside by the department on review unless the finding is contrary to the weight of the evidence in the record. State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994); see also § 24-4-105(15)(b), C.R.S.2001.

Ultimate facts involve a conclusion of law, or at least a mixed question of law and fact, and settle the rights and liabilities of the parties. Ultimate facts usually are phrased in the language of the controlling statute or legal standard. The department may substitute its judgment for that of an ALJ with respect to an ultimate fact so long as the department’s finding has a reasonable basis in law and is supported by substantial evidence in the record. State Board of Medical Examiners v. McCroskey, supra; see also § 24-4L-105(15)(b).

Here, the ALJ specifically found that applicant’s current needs were not being met and made detailed factual findings in support of that current needs assessment. The department does not challenge the factual findings. It instead focuses on the ALJ’s choice of language in finding applicant eligible for HCBS, namely, that there was an “imminent risk for nursing facility placement.” The ALJ also referred to applicant’s “placement in a nursing facility, on an imminent basis, because she is at risk,” and the fact that she is “at risk for nursing facility placement.”

Relying on that language, the department argues that the ALJ based his determination on speculation about applicant’s future risk of deterioration and that he applied the service dependency regulation. We disagree.

The resolution of this case does not turn on the department’s interpretation of unique language in its own regulations. The “imminent risk” terminology used by the ALJ here has been used hundreds of times in prior appellate opinions resolving both civil and criminal cases.

“Risk” is a noun and is defined as “the chance of injury, damage, or loss; danger or hazard.” Black’s Law Dictionary 1328 (7th ed.1999).

“Imminent” means “likely to happen without delay; impending; threatening.” Webster’s New World Dictionary 702 (1972); see also People v. Yaklich, 833 P.2d 758, 760 (Colo.App.1991)(defining “imminent” as “near at hand, impending or on the point of happening”). “Impending” means “about to happen.” Webster’s New World Dictionary 704.

In at least one case, the Colorado Supreme Court has equated “imminent danger” with “imminent risk,” People v. Mendoza-Balderama, 981 P.2d 150, 157 (Colo.1999), and “imminent danger” has been defined as “an immediate, real threat to one’s safety that justifies the use of force in self-defense.” Black’s Law Dictionary 399.

“Imminent” thus connotes a threat that is immediate. For example, Colorado’s self-defense statute permits an individual to use deadly physical force against another if that individual reasonably believes that the other individual has used or imminently will use unlawful life-threatening foree. Section 18-1-704, C.R.S.2001; see People v. Yaklich, supra.

In this case, the ALJ used the term “imminent risk” in finding that applicant had no option except placement in a nursing home facility and in determining that she was eligible for HCBS. The ALJ’s decision, reasonably construed, was based upon applicant’s present and immediate need and condition. The ALJ specifically stated that “[a]t present, her basic human needs in the area of personal hygiene and daily living are not being adequately met.”

Thus, contrary to the department’s contention, the ALJ applied the correct legal standard and did not base his determination on speculation or on applicant’s future risk of deterioration. Nor did he apply the service dependency regulation, which uses the language “future deterioration.” Indeed, the ALJ’s order made no reference to that regulation.

We therefore conclude the department’s decision reversing the ALJ has no reasonable basis in fact or law, and the district court erred in upholding that decision. See State Board of Medical Examiners v. McCroskey, supra; see also § 24-4-105(15)(b) (ALJ’s finding of evidentiary fact cannot be set aside by the department on review unless the finding is contrary to the weight of the evidence in the record).

The order of the district court is reversed, and the case is remanded to the district court to reinstate the order of the AL J.

Judge METZGER and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge PLANK.

license: Public Domain

text:
    Cheryl A. CUNLIFFE, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Gonzales Consulting Services, Inc., Respondents.
    No. 01CA2446.
    Colorado Court of Appeals, Div. II.
    May 23, 2002.
    Cheryl A. Cunliffe, Pro Se.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Albert C. Gonzales, President, Denver, Colorado, Authorized Representative for Respondent Gonzales Consulting Services, Inc.
   Opinion by

Judge PLANK.

Petitioner, Cheryl A. Cunliffe (claimant), seeks review of a final order of the Industrial Claim Appeals Office (Panel) which affirmed an order of a hearing officer disqualifying her from the receipt of unemployment compensation benefits pursuant to § 8-73-108(5)(e)(I), C.R.S.2001 (quit due to dissatisfaction with standard working conditions). We affirm.

After an evidentiary hearing, the hearing officer made the following findings. Claimant worked for Gonzales Consulting Services, Inc., a company that hired and referred employees to client companies to perform professional and technical services in long- and short-term assignments. Gonzales placed claimant in a long-term assignment as a staff accountant with the federal Small Business Administration (SBA).

After claimant’s SBA supervisor told her she was going to be relocated to a work cubicle that claimant believed contained grossly inadequate work and filing space, she orally resigned. However, after reconsidering, she asked her supervisor about three hours later if she could rescind her resignation.

Her request was denied.

After claimant worked through her notice period at SBA, Gonzales had no further work assignment for her, and she became unemployed.

Based on these and other evidentiary findings, the hearing officer concluded that claimant resigned from her SBA assignment due to dissatisfaction with standard working conditions. He further found that, with such short notice, claimant could not reasonably expect Gonzales to place her immediately in another assignment. Thus, the hearing officer concluded that claimant was responsible, or at fault, for her separation and disqualified her pursuant to § 8-73-108(5)(e)(I).

The Panel agreed with the hearing officer’s determination and further determined that claimant’s attempt to rescind her resignation did not alter the cause of her separation. And, the Panel concluded the hearing officer properly could infer that claimant’s resignation from the SBA assignment resulted in her separation from overall employment. The Panel affirmed the hearing officer’s decision, and this appeal followed.

On appeal, claimant contends only that the SBA’s unreasonable refusal to allow her to rescind her hastily submitted resignation transforms her voluntary resignation into an involuntary termination, thereby entitling her to unemployment benefits. We disagree.

The issue whether an employer’s refusal to accept an employee’s retraction of a voluntarily submitted resignation transforms that resignation into an involuntary termination, thereby entitling the employee to unemployment benefits, has not been decided in Colorado. Other jurisdictions have resolved this issue differently. See Francis M. Dougherty, Annotation, Eligibility for Unemployment Compensation Benefits of Employee Who Attempts to Withdraw Resignation Before Leaving Employment, 36 A.L.R.4th 395 (1985).

A minority view is that an employer’s refusal to accept the withdrawal of the resignation renders the subsequent termination involuntary and thus entitles the employee to benefits. See, e.g., Mauro v. Administrator, 19 Conn.Supp. 362,113 A.2d 866 (1954); Cotright v. Doyal, 195 So.2d 176 (La.Ct.App.1967).

In Pennsylvania, a resignation remains a voluntary termination if the employer has taken steps to replace the claimant before the claimant’s revocation attempts. See Zimmerman v. Commonwealth, 101 Pa. Commw. 274, 516 A.2d 102 (1986).

However, the majority of jurisdictions have held that an employer may not be required to accept the withdrawal of the resignation. Thus, a claimant may be denied benefits on the basis of a voluntary termination, notwithstanding an employer’s refusal to accept a retraction of the voluntary resignation. See Osterhout v. Everett, 6 Ark.App. 216, 639 S.W.2d 539 (1982); Wright v. District of Columbia Dep’t of Employment Services, 560 A.2d 509 (D.C.1989); Langley v. Employment Appeal Bd., 490 N.W.2d 300 (Iowa Ct.App.1992); Guy Gannett Publ’g Co. v. Maine Employment Sec. Comm’n, 317 A.2d 183 (Me.1974).

Here, we find that the majority position is better reasoned and conforms most closely to Colorado’s unemployment compensation policies.

Thus, we conclude that, for unemployment compensation purposes, a voluntary resignation is an unconditional event, the legal significance and finality of which are not altered by the interval between the employee’s notice and his or her departure from the job. Therefore, an employer who accepts an employee’s unequivocal notice of resignation is entitled to rely on it without the risk of being charged for compensation benefits if the employee attempts to withdraw the resignation before its effective date. Of course, in the interim period the employer may choose to return to the status quo ante either by rehiring the employee or accepting a retraction of the resignation. See Osterh-out v. Everett, swpra; Langley v. Employment Appeal Bd., supra; Guy Gannett Publ’g Co. v. Maine Employment Sec. Comm’n, supra.

Consequently, we hold that when an employee voluntarily resigns and the employer refuses to accept an attempted retraction of the resignation prior to its effective date, the employee’s resignation is considered to have been voluntary for purposes of determining the employee’s entitlement to unemployment compensation benefits. Langley v. Employment Appeal Bd., supra.

This holding is consistent with the underlying purpose of the unemployment act: to provide benefits to those claimants who are separated from their employment through no “fault” of their own. See § 8-73-108(l)(a), C.R.S.2001. When a claimant’s voluntary resignation sets in motion the chain of events that ultimately results in unemployment, we cannot say that the claimant was unemployed through no “fault” of her own. Here, claimant’s attempt to rescind her resignation does not alter the fact that initially it was voluntary. See Whicker v. High Point Pub. Schs., 56 N.C.App. 253, 287 S.E.2d 439 (1982).

Before the hearing officer and the Panel, claimant also asserted that a substantially unfavorable change in working conditions prompted her resignation. She did not make this argument on appeal nor did she raise any argument concerning § 8-73-105.5, C.R.S.2001, which deals specifically with temporary help contracting firms. Hence, we do not address either of those issues.

The Panel’s order is affirmed.

Judge JONES and Judge WEBB concur.


author: Judge DAVIDSON.

text:
    Maxie JIMINEZ, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE, Amax Henderson Project, and Colorado Compensation Insurance Authority, d/b/a Pinnacol Assurance, Respondents.
    No. 01CA2044.
    Colorado Court of Appeals, Div. V.
    May 23, 2002.

      Roger Fraley, Jr., Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Curt Kriksciun, Denver, Colorado, for Respondents Amax Henderson Project and Colorado Compensation Insurance Authority.
   Opinion by

Judge DAVIDSON.

In this workers’ compensation proceeding, Maxie Jiminez (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) allowing respondents, Amax Henderson Project and its insurer, Colorado Compensation Insurance Authority, to assert a retroactive offset for Social Security payments. He also seeks review of the denial of his claim for penalties. We affirm.

Claimant sustained an admitted injury to his back in 1993. He began receiving federal Social Security Disability Insurance (SSDI) benefits in October 1994. Respondents were informed of the SSDI benefits in April 1995.

Claimant reached maximum medical improvement (MMI) in July 1995 and was assigned a 21.6% impairment rating. Respondents filed a general admission of liability in August 1995, which admitted for temporary total disability (TTD) benefits and permanent partial disability benefits in accordance with the rating. However, following a division-sponsored independent medical examination (DIME) in 1996, claimant received a 25% impairment rating. Based upon the DIME rating, respondents filed a final admission for a reduced amount of benefits, bringing claimant up to the statutory $60,000 limit for combined temporary and permanent disability-

claimant suffered a worsening of condition and underwent surgery in April 1998. Respondents then filed another final admission of liability, admitting again to the $60,000 statutory cap and, for the first time, asserting an offset for SSDI benefits retroactive to October 1994. Respondents filed four more admissions, which all included the SSDI offset. As a result, claimant’s TTD benefits, which had been reinstated, were reduced and partially suspended.

Claimant reached MMI for his worsened condition in November 1998. He underwent another DIME and received a 38% impairment rating, which respondents contested. Following a hearing on the DIME rating, the Administrative Law Judge (ALJ) issued an order, dated January 25, 2000, finding that claimant’s impairment rating was 32% and directing respondents to pay benefits accordingly. Because claimant’s impairment rating increased beyond 25%, there was a corresponding increase in the statutory cap to $120,000.

Respondents resumed paying claimant benefits, but refused to file another final admission.

Claimant subsequently requested a hearing on numerous issues. As pertinent here, he contested respondents’ right to take an offset for SSDI benefits retroactive to October 1994. Claimant also sought penalties against respondents based upon their amendment of the admission of liability to take the offset and their failure to file a final admission of liability subsequent to the ALJ’s order of January 25, 2000.

The ALJ found that respondents were entitled to reduce benefits payable to claimant by one-half of the SSDI benefits he had received pursuant to § 8 — 42—103(l)(c)(I), C.R.S.2001. The ALJ, relying on Johnson v. Industrial Commission, 761 P.2d 1140 (Colo.1988), also found that respondents could take that offset retroactively, applying it to future benefits as they had done. The ALJ noted that under Johnson an insurer, by its conduct, could waive the right to take an offset, but found that claimant did not prove that such a waiver had occurred.

The ALJ also rejected both claims for penalties. The ALJ reasoned that it would be anomalous to penalize respondents for amending their admission to reflect the taking of a retroactive offset authorized by law. The ALJ further concluded that the requirement of filing an admission within thirty days of a resumption or increase in benefits, as set forth in Dep’t of Labor & Employment Rule IV(N)(3), 7 Code Colo. Regs. 1101-3, does not apply to benefits ordered by an ALJ.

The Panel affirmed the foregoing determinations on review.

I.

Claimant first contends that the Panel erred in upholding the ALJ’s determination that respondents were entitled to a retroactive offset for the SSDI benefits he had received. We disagree.

In Johnson v. Industrial Commission, supra, the supreme court held that the offset for SSDI benefits set forth in § 8-42-103(l)(c)(I) may be taken retroactively against compensation benefits received before the insurer has invoked the claim of an offset. The court observed that nothing in the statute indicated that an insurer’s right of offset was subject to a time limitation. The court further noted that imposing such a restriction would undermine the very purpose of the offset, which is to prevent a windfall of duplicative disability benefits regardless of whether such outcome occurs by mistake.

The Johnson court also rejected the argument that a retroactive application of the offset was equivalent to a retroactive withdrawal or revocation of an insurer’s admission of liability in violation of former § 8-53-102, Colo. Sess. Laws 1983, ch. 79 at 416-17 (now codified with amendments at § 8-43-203, C.R.S.2001). The court explained that the offset, when taken retroactively, merely adjusts the amount of benefits to accurately reflect the amount to which a claimant is actually entitled. It does not abrogate the insurer’s admission of liability or otherwise cause a discontinuation in benefits.

Claimant urges that we distinguish Johnson. He argues that, unlike the insurer in Johnson, which was unaware of SSDI benefits when the final admission was filed, respondents here knew of such benefits before the first general admission was filed and any benefits were paid. He argues, therefore, that the retroactive assertion of the offset was tantamount to an improper retroactive correction of a mistaken admission. Citing Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo.1985); HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App.1990); and Vargo v. Colorado Industrial Commission, 626 P.2d 1164 (Colo.App.1981), claimant maintains that a correction can be made only pursuant to an order of the ALJ and only with respect to benefits that have not yet been paid.

However, we conclude that the distinction claimant makes merely restates the argument that the court in Johnson rejected. Further, we agree with the Panel that the closure of the 1995 injury claim did not preclude respondents from subsequently invoking the SSDI offset. See Cody v. Indus. Claim Appeals Office, 940 P.2d 1042 (Colo.App.1996)(permitting a “retroactive offset” of SSDI benefits where the claim had been closed and subsequently reopened based upon a worsened condition).

Implying that they waived the right to take an offset, claimant asserts that respondents were aware of the SSDI benefits before the first final admission. However, claimant has not challenged the ALJ’s finding that claimant had not met his burden to establish that respondent’s failure to assert the SSDI offset was the product of voluntary, knowing and intelligent conduct. Thus, any issue of waiver has not been properly preserved, and therefore, we do not consider it.

II.

Claimant also asserts that the ALJ erred in failing to impose penalties against respondents for the refusal to file a final admission of liability when benefits were resumed in accordance with the ALJ’s January 25, 2000, order. Again, we disagree.

Claimant relies upon Dep’t of Labor & Employment Rule IV(N)(3), which requires that an admission be filed within thirty days of a resumption or increase in benefits. He contends that the rule is unambiguous and requires the filing of a final admission regardless whether benefits are resumed or increased pursuant to a voluntary admission or an order. Respondents argue that the provision is limited to voluntary admissions.

The Panel concluded that the rule was susceptible of either interpretation. Analyzing the distinction made under the Workers’ Compensation Act between benefits paid pursuant to “admissions” and those paid pursuant to order, the Panel observed that admissions are considered the result of voluntary action by insurers, while orders are the product of litigation.

For example, the Panel referred to § 8-43-203(2)(d), C.R.S.2001, which provides that hearings “may be set to determine any matter, but, if any liability is admitted, payments shall continue according to admitted liability.” This section is part of an overall “statutory scheme designed to promote, encourage, and ensure prompt payment of compensation to’an injured worker without the necessity of a formal administrative determination of the employer’s duty to provide benefits in cases that do not present a legitimate controversy.” HLJ Mgmt. Group, Inc. v. Kim, supra, 804 P.2d at 252. The Panel also noted that in Brown & Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App.1991), the court determined that an “award,” for purposes of determining whether a claim must be reopened under § 8-43-303, C.R.S. 2001, may be the result of either an admission or a contested hearing.

In light of this history, the Panel determined that the ALJ had correctly concluded that the requirement to file an admission within thirty days of a resumption or increase of benefits set forth in Rule rV(N)(3) applies only to voluntary admissions of liability, not to a resumption or increase ordered by an ALJ. In so holding, the Panel discounted claimant’s assertion that respondents’ failure to file a final admission deprived him of information he needed to assess whether his benefits were calculated correctly. The Panel pointed out that in most cases, the final order will clearly state the amount and type of benefits owed, thus obviating the need for a final admission. Additionally, pursuant to Dep’t of Labor & Employment Rule IV(G)(3), 7 Code Colo. Regs. 1101-3, a final accounting of benefits must be provided to claimants in litigated cases within thirty days of the final order.

Not only do we consider the Panel’s interpretation to be well-reasoned, but we note that an administrative agency’s interpretation of its own regulations is generally entitled to great weight and should not be disturbed on review unless plainly erroneous or inconsistent with such regulations. Schneider v. Indus. Comm’n, 624 P.2d 371 (Colo.App.1981). Thus, we adopt the Panel’s construction of Rule IV(N)(3) and conclude that respondents’ failure to file an admission after the ALJ’s order did not constitute a violation of that rule and did not subject respondents to the imposition of a penalty.

In light of the disposition here, we need not address claimant’s remaining contentions.

The Panel’s order is affirmed.

Judge CASEBOLT and Judge NIETO concur.


author: Judge VOGT.

text:
    In the Matter of the Ethel Mae SCHLAGEL TRUST. Cassandra Thacker and Kayla Thacker, Petitioners-Appellants, v. Rodney L. Schlagel, Respondent-Appellee.
    No. 01CA1176.
    Colorado Court of Appeals, Div. IV.
    June 6, 2002.
    Law Office of James D. Thorburn, LLC, James D. Thorburn, Richard A. Walker, Elizabeth, Colorado, for Petitioners-Appellants.
    Holme, Roberts & Owen LLP, Stephanie M. Tuthill, Richard L. Gabriel, Merry H. Balsón, Denver, Colorado, for Respondent-Appellee.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2001.

   Opinion by

Judge VOGT.

Petitioners, Cassandra Thacker and Kayla Thacker (grandchildren), beneficiaries and interested persons under the Ethel Mae Schlagel Trust, appeal the trial court’s order denying their petition for appointment of a successor trustee. We affirm.

In 1991, Ethel Mae Schlagel executed a general power of attorney granting her husband, Jake Schlagel, Jr., broad authority to manage her financial affairs. At the same time, the Schlagels created the Trust, which provided for income for Mrs. Schlagel during her lifetime and the disposition of any remaining trust assets to family members on her death. The trust agreement gave the settlor the right to revoke the Trust at any time. It was executed on behalf of Mrs. Schlagel as settlor and trustee “by Jake Schlagel, Jr., Attorney-in-Fact and Agent under Power of Attorney,” and by Mr. Schla-gel individually as trustee.

In 1997, a document entitled “Revocation of the Ethel Mae Schlagel Trust” was executed on behalf of Mrs. Schlagel, the settlor, by Mr. Schlagel as her attorney-in-fact and agent under power of attorney.

After the deaths of Mr. and Mrs. Schlagel in 1999, a dispute arose among their children and grandchildren, the beneficiaries under the Trust. The grandchildren petitioned for appointment of a successor trustee who would have standing to litigate whether certain assets were the property of the Trust rather than of Mrs. Schlagel’s estate. Respondent, Rodney L. Schlagel, Mr. and Mrs. Schlagel’s son, objected to the petition. After a hearing, the trial court concluded that there was no trust to which a new trustee could be appointed because the Trust had been validly revoked in 1997. It accordingly denied the grandchildren’s petition.

The grandchildren contend on appeal that, because the 1991 power of attorney did not specifically give Mr. Schlagel power to revoke the Trust, the trial court erred in concluding that his purported revocation in 1997 was valid. We disagree.

The relevant instruments in this ease were executed prior to the January 1, 1995, effective date of § 15-14-608, C.R.S.2001, the current statute addressing the authority of an agent to revoke a trust. See Colo. Sess. Laws 1994, ch. 188, § 15-14-608 at 1073. Therefore, resolution of the issue presented here is governed by application of the common law principles set forth in In re Trust of Franzen, 955 P.2d 1018 (Colo.1998).

The issue before the supreme court in Franzen was whether an agent acting under a durable power of attorney executed before the effective date of § 15-14-608 had the power to revoke a trust even though the trust was not specifically referenced in the instrument granting the power. After reviewing cases from other jurisdictions, including the case on which the grandchildren place primary reliance here, the court stated that it was “willing to assume, for the sake of argument,” that an agent under the common law would not have authority to revoke a trust established to benefit the principal if the power of attorney gave the agent broad authority but made “no mention of the power to alter the principal’s rights under any trust.” The court continued:

Even so, we are not persuaded that under the common law, an agency instrument must expressly refer to a particular trust by name in order to confer authority on the agent to revoke it. Under the reasoning of the cases previously cited, the terms of the power of attorney need only evince an intention to authorize the agent to make decisions concerning the principal’s interests in trusts generally, not necessarily a particular trust.

In re Trust of Franzen, supra, 955 P.2d at 1022 (emphasis supplied).

The power of attorney at issue here states, in relevant part:

1. General Grant of Power. My agent may exercise or perform any act, power, duty, right or obligation whatsoever that I now have or may hereafter acquire, relating to any person, matter, transaction or property, real or personal, tangible or intangible, now owned or hereafter acquired by me, including, without limitation, the specifically enumerated powers contained herein; and I grant to my agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that my agent shall lawfully do or cause to be done by virtue of this power of attorney and the powers herein granted.
3. Power to Acquire and Sell. My agent may acquire, purchase, exchange, grant options to sell, and sell and convey real or personal property, tangible or intangible, or interest therein, on such terms and conditions as my agent shall deem proper.
4. Management Powers. My agent may maintain, repair, improve, invest, manage, insure, rent, lease, encumber, transfer and in any manner deal with any real or personal property, tangible or intangible, or in any interest therein, in my name and for my benefit, upon such terms and conditions as my agent shall deem proper.
7. Business Interests. My agent may conduct or participate in any lawful business of whatever nature for me and in my name; execute partnership agreements and amendments thereto; incorporate, reorganize, merge, consolidate, recapitalize, sell, liquidate or dissolve any business; elect or employ officers, directors and agents; carry out the provisions of any agreement for the sale of any business interest or the stock therein; and exercise voting rights with respect to stock, either in person or by proxy and exercise stock options.
12. Trust Agreements. My agent may prepare, sign and execute such trust agreements or other estate planning documents and/or agreements on my behalf as may be necessary or proper in the exercise of the rights and powers herein granted.
13. Interpretation. This instrument is to be construed and interpreted as a general power of attorney. The enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general powers herein granted to my agent.

These provisions not only confer on the agent broad powers over Mrs. Schlagel’s business interests and financial affairs, including “full power of ... revocation” (If 1), but also expressly authorize the agent to “prepare, sign and execute ... trust agreements” (¶ 12). We agree with the trial court that they “evince an intention to authorize the agent to make decisions concerning the principal’s interest in trusts generally,” which under Franzen is sufficient to establish that the agent also has the power to revoke the Trust.

Although, as the grandchildren point out, the power of attorney at issue in Franzen specifically referenced revocation of a trust, we conclude that the language in the power of attorney here falls within the holding of Franzen even though the phrase “revocation of trust” does not appear. See also In re Mosteller, 719 A.2d 1067 (Pa.Super.Ct.1998)(under Pennsylvania statute directing courts to consider language showing principal’s intent, power of attorney giving broad general grant of power and including specific language allowing attorney-in-fact to deal with trusts gave attorney-in-fact authority to revoke trust even though power to revoke was not specifically mentioned).

Franzen also directed that courts construe powers of attorney in light of the surrounding circumstances. Consistent with that direction, the trial court here properly considered the affidavit of the Schlagels’ attorney, who attested that it was Mrs. Schlagel’s intent that Mr. Schlagel would have the power to revoke the Trust. The court also noted that Mr. Schlagel had once amended the trust agreement prior to revoking it and that there was no evidence that Mrs. Schlagel ever opposed Mr. Schlagel’s authority to revoke the Trust. We note, in addition, that the trust agreement itself was not executed by Mrs. Schlagel but by Mr. Schlagel as her attorney-in-fact and agent. These surrounding circumstances further support the trial court’s conclusion that Mr. Schlagel had validly revoked the Trust.

Finally, we reject the grandchildren’s suggestion that we reach a different conclusion in the name of “public policy” or in reliance on cases from other jurisdictions. Franzen controls our resolution of this issue. The plain language of the power of attorney, especially when considered in connection with the surrounding circumstances, evidences Mrs. Schlagel’s intention to authorize Mr. Schlagel to make decisions concerning her interests in trusts generally. This is sufficient under Franzen to establish that Mr. Schlagel had authority to revoke the Trust. The trial court did not err in so concluding.

The order is affirmed.

Judge NEY and Justice ERICKSON concur.


author: Judge PLANK. Judge TAUBMAN

text:
    Cheryl ERBE, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, HEARING SECTION; and Kenneth Wynkoop, Chief Hearing Officer, Defendants-Appellees.
    No. 01CA0566.
    Colorado Court of Appeals, Div. II.
    June 20, 2002.

      Wollrab and Associates, P.C., James C. Wollrab, Jr., Boulder, Colorado, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Ceri Williams, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge PLANK.

Plaintiff, Cheryl Erbe, appeals from the district court judgment affirming the revocation of her driver’s license by the Department of Revenue for refusing to submit to testing as required by the express consent statute. Because we conclude that the Department violated plaintiffs statutory right to counsel in the revocation proceedings under the circumstances here, we reverse and remand for a new revocation hearing.

The record reveals the following facts. After plaintiff was arrested for driving under the influence of alcohol, she allegedly refused to submit to the required tests of her blood or breath. Consequently, plaintiffs driver’s license was subject to revocation pursuant to the provisions of § 42-2-126, C.R.S.2001.

Plaintiff made a timely request for a revocation hearing on February 3, 2000. On February 17, the Department sent plaintiff a notice that it had scheduled her revocation hearing for 2:30 p.m. on March 13. In a letter dated February 28, plaintiffs counsel requested the Department to reschedule the hearing because of a scheduling conflict, stating that he was scheduled to make a court appearance in another county at 2:00 p.m. on that date.

In response, the Department sent notice of its policy that “reschedule requests based on the unavailability of either the respondent or the respondent’s counsel will not be granted.” Based on the statutory sixty-day time limit for holding such hearings, the Depart-merit’s “reschedule policy” provides that rescheduling beyond this time period “obviously is not a valid option” because it would result in a loss of jurisdiction. The Department’s policy further provides that rescheduling within the sixty-day limit at the request of licensees or their attorneys “is not feasible” because of “docketing pressures.”

On advice of counsel, plaintiff did not appear for the scheduled hearing under these circumstances, because she could not have the benefit of legal representation at the hearing by the counsel of her choice as a result of the scheduling conflict. The Department thereafter revoked plaintiffs driver’s license pursuant to § 42-2-126.

Plaintiff brought this action in the district court challenging the revocation on various grounds. On judicial review, the district court rejected plaintiffs arguments and affirmed the revocation. This appeal followed.

Plaintiff contends, among other things, that the Department’s policy against rescheduling any revocation hearings violates various statutory provisions. We agree with plaintiff that, under the circumstances here, the Department’s actions effectively violated her statutory right to counsel of her own choosing at the administrative hearing, and plaintiff is therefore entitled to a new revocation hearing.

The standard governing judicial review of express consent revocation proceedings is set forth in § 42-2-126(10)(b), C.R.S.2001. Under these provisions, a reviewing court may reverse a revocation order when, among other things, the Department has acted in an arbitrary and capricious manner or has made an erroneous interpretation of the law.

Section 42-2-126(l)(b), C.R.S.2001, provides that one purpose of the revocation statute is to “guard against the potential for any erroneous deprivation of driving privilege by providing an opportunity for a full hearing.” This statutory scheme is intended to provide for a prompt but fair revocation procedure. See Guynn v. State, 939 P.2d 526 (Colo.App.1997).

Thus, a revocation under § 42-2-126 may be reversed on review if a statutory violation by the Department causes prejudice to the substantial rights of the licensee. See Nye v. Motor Vehicle Div., 902 P.2d 959 (Colo.App.1995).

Under § 42-2-126(8)(e), C.R.S.2001, a revocation hearing must be held within sixty days after the request for such a hearing is received. As noted in the Department’s rescheduling policy, this statutory sixty-day time limit is jurisdictional. See Guynn v. State, supra; Wilson v. Hill, 782 P.2d 874 (Colo.App.1989). Moreover, although the statute authorizes exceptions to the sixty-day limit under certain circumstances involving the unavailability of a law enforcement officer or hearing officer, the statute provides no exception for the unavailability of a licensee or a licensee’s counsel.

Nevertheless, rescheduling requests within the sixty-day limit by a licensee or counsel are clearly authorized and anticipated under the pertinent statutory scheme. By statute, the effective date of a revocation is generally stayed upon a timely request for a hearing until a final order is issued following the hearing. However, § 42-2-126(6)(a), C.R.S. 2001, further provides that the revocation is not stayed during the period of “any delay in the hearing which is caused or requested by the subject person or counsel representing that person.”

In addition, § 42-2-126(11), C.R.S.2001, provides that the State Administrative Procedure Act (APA), § 24-4-101, et seq., C.R.S. 2001, is applicable to such revocation proceedings “to the extent it is consistent with” the provisions of the revocation statute relating to administrative hearings and judicial review.

There is a statutory right to counsel of a party’s own choosing in administrative proceedings under the APA. In this regard, § 24r-4-105(9)(a), C.R.S.2001, provides that any party in such proceedings “shall be entitled to the benefit of legal counsel of his or her own choosing and at his or her own expense.” Moreover, in scheduling hearings in APA proceedings, § 24-4H05(2)(a), C.R.S. 2001, provides that “due regard shall be had for the convenience and necessity of the parties and their representatives.”

Here, because plaintiff requested a hearing on February 3, the Department was required to hold the hearing by April 3, sixty days later. When on February 28, plaintiffs counsel requested rescheduling of the hearing because of a scheduling conflict, a month remained of the sixty-day time period, including three weeks after the date originally set for the hearing. Even so, pursuant to its policy against rescheduling, the Department refused to attempt to reschedule the hearing for another date within the sixty-day time limit.

In our view, the Department’s policy of never granting rescheduling requests by a licensee or counsel for alternative dates within the sixty-day limit is arbitrary, capricious, and inconsistent with its statutory obligations to provide a meaningful opportunity for a fair hearing. See § 42 — 2—126(l)(b), (6)(a), (10)(b), (11); see also § 24r-4^105(2)(a). Further, as this policy was applied under the circumstances here, we conclude that the Department’s refusal to attempt to accommodate counsel’s rescheduling request effectively violated plaintiffs statutory right to counsel of her own choosing in the revocation proceedings. See §§ 42-2-126(10)(b), (11), 24-4-105(9)(a).

Thus, because the revocation here resulted from arbitrary and capricious procedural actions by the Department in violation of plaintiffs substantial rights under the statutory scheme, it cannot stand. Consequently, we vacate the judgment affirming the revocation order and remand for the scheduling of a new revocation hearing in compliance with the Department’s procedural obligations under the statutory scheme. See § 42-2-126(10)(b); Barnes v. Colorado Dep’t of Revenue, 23 P.3d 1235 (Colo.App.2000); see also Nye v. Motor Vehicle Div., supra.

We further note that, under the circumstances here, the statutory sixty-day period will begin to run anew upon the Department’s reacquisition of jurisdiction. See Guynn v. State, supra.

We also emphasize that we are not holding that the Department must accommodate every request made by a licensee or counsel for rescheduling within the statutory sixty-day limit, regardless of the timing or the basis of such a request. For example, the Department may deny a rescheduling request that is made too late to be accommodated. Another factor for consideration is the extent to which rescheduling would create an undue burden on the Department’s docket and its case management. Additionally, there may be other circumstances in which the jurisdictional deadline under § 42-2-126 conflicts with and takes priority over a licensee’s statutory rights under the APA.

The deadline does not take priority here, however. There is no support in the record for the Department’s bald assertions that it is never “feasible” to reschedule hearings within the sixty-day limit because of “docketing pressures.” Rather, the reversible error in this ease is that the Department refused even to attempt to accommodate counsel’s legitimate rescheduling request to the detriment of plaintiffs substantial rights, and there is no indication in the record that rescheduling the hearing within the sixty-day limit would have been impracticable or unduly burdensome.

In view of this disposition of the issues, we need not address the remaining contentions of the parties.

Accordingly, the judgment is reversed, and the case is remanded to the district court with directions to remand the matter to the Department for further proceedings consistent with the views expressed in this opinion.

Judge DAILEY concurs.

Judge TAUBMAN specially concurs.

Judge TAUBMAN

specially concurring.

I agree with the conclusion and most of the analysis contained in the majority’s opinion. I write separately, however, to express my view that the statutory sixty-day time limit for holding a revocation hearing under § 42-2 — 126(8)(e), C.R.S.2001, is not jurisdictional in these circumstances.

Both parties proceed on the assumption that the .sixty-day time limit is jurisdictional, following the ruling by a division of this court in Wilson v. Hill, 782 P.2d 874 (Colo.App.1989). That case, however, concerned a delay by the Department of Revenue, not a requested delay by the claimant. As I read Wilson, and the cases upon which it relies, e.g., Ursino v. Superior Court, 39 Cal.App.3d 611, 114 Cal.Rptr. 404 (1974), the sixty-day time limit at issue here is “jurisdictional” only insofar as it requires the Department of Revenue to hold a hearing within that period.

As a division of this court observed in Minto v. Lambert, 870 P.2d 572 (Colo.App. 1993), the term “jurisdiction” has diverse and disparate meanings, encompassing both the appropriate exercise of power and the absence of power. Properly considered, lack of subject matter jurisdiction concerns the absence of power, while the issue here is the appropriate exercise of power.

Nothing in Wilson precludes waiver of the sixty-day time limit when a licensee or the licensee’s attorney requests a rescheduling of the hearing. Wilson and the cases on which it relies focus solely on government officials’ nondiscretionary duty to act within a specified period, rather than the Department of Revenue’s power to adjudicate license revocation cases. Thus, to the extent that the sixty-day time limit may be waived, the Department of Revenue would be free to reschedule license revocation hearings after the sixty-day period has expired. This reading of the statute would obviate the Department of Revenue’s concerns about the difficulty or impossibility of rescheduling a hearing within the sixty-day period.

While Wilson and the cases it cites emphasize the importance of an administrative agency carrying out its duties strictly within a particular statutory time period, there is no reason why a licensee should not be able to waive that statutory provision and obtain a hearing after the sixty-day period. Further, such a waiver is consistent with § 42-2-126(6)(a), C.R.S.2001, which provides that a revocation is not stayed during the period of any delay in a hearing caused or requested by the licensee or the licensee’s attorney. My interpretation furthers the licensee’s statutory right to counsel of his or her own choosing under § 24-4-105(9)(a), C.R.S.2001, and is consistent with the statutory provision contained in § 24-4-105(2)(a), C.R.S.2001, that “due regard shall be had for the convenience and necessity of the parties and their representatives.”

Accordingly, I would conclude that the sixty-day time period is not jurisdictional in these circumstances and remand for further proceedings.


author: Judge NEY.

text:
    COLORADO COUNTIES CASUALTY AND PROPERTY POOL, Board of County Commissioners of the County of Cheyenne, Board of County Commissioners of the County of Kiowa, Board of County Commissioners of the County of Baca, and Ronald E. Foster, in his official capacity as District Attorney for the 15th Judicial District, Plaintiffs-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PROWERS, Defendant-Appellant.
    No. 01CA1345.
    Colorado Court of Appeals, Div. IV.
    June 20, 2002.

      Senter, Goldfarb & Rice, L.L.C., Thomas S. Rice, Eric M. Ziporin, Denver, CO, for Plaintiffs-Appellees.
    Lasater & Allen, P.C., J. Scott Lasater, James E. Young, Littleton, CO, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and §■24-51-1105, C.R.S.2001.

   Opinion by

Judge NEY.

Defendant, the Board of County Commissioners of Prowers County, appeals summary judgment entered in favor of plaintiffs, the Colorado Counties Casualty and Property Pool (Pool); the Board of County Commissioners of Cheyenne County, Kiowa County, and Baca County (collectively, plaintiff counties); and the District Attorney for the Fifteenth Judicial District. We affirm.

The Pool is a casualty and property insurance pool consisting of several member counties, including the three plaintiff counties, but not Prowers County.

In 1998, a wrongful termination lawsuit was filed against the district attorney by one of his former employees.

The Pool requested that the Colorado State Claims Board of the Division of Risk Management assume the defense of the district attorney in that lawsuit pursuant to § 24-30-1510, C.R.S.2001 (creating a “risk management fund” to pay liability claims brought against state officials). Alternatively, the Pool sought contribution from Prow-ers County. The State Claims Board and Prowers County both declined to participate. Consequently, the Pool and the district attorney’s private insurer paid the defense costs and settlement of the action on behalf of the district attorney.

The Pool and the plaintiff counties subsequently brought this action for indemnification against the State Claims Board and for contribution against Prowers County for the costs expended in the underlying litigation.

On cross-motions for summary judgment, the trial court dismissed the State Claims Board from the litigation, ruling that the district attorney is not covered by the risk management fund. The appealability of this ruling is presently pending on petition for certiorari before the Colorado Supreme Court.

The trial court also entered judgment against Prowers County for its pro rata contribution and indemnification for the defense and settlement expenses incurred in the underlying suit. Prowers County appeals this judgment here.

I.

Prowers County contends that because the costs for defending the district attorney in a lawsuit are not expenses contemplated by § 20-1-303, C.R.S.2001, the trial court erred in ruling it was liable for those costs. We disagree.

As relevant here, § 20-1-303 provides that “the district attorney of each judicial district in the state of Colorado ... shall be allowed to collect and receive from each of the counties in his district the expenses necessarily incurred in the discharge of his official duties for the benefit of such county.”

Prowers County argues that although no Colorado case has defined the “expenses necessarily incurred in the discharge of his official duties for the benefit of such county,” the ease law indicates that not all costs associated with the district attorney’s office are considered necessary for maintaining an office. Prowers County relies on cases such as Beacom v. Board of County Commissioners, 657 P.2d 440 (Colo.1983), and Johns v. Miller, 42 Colo.App. 97, 594 P.2d 590 (1979). Prowers County also argues that because the underlying lawsuit alleged willful and wanton conduct, the expenses were not incurred in the discharge of the district attorney’s official duties. In essence Prowers County thus argues that day-to-day functions of the district attorney are “necessary expenses” under that statute, but that the expenses associated with defending and indemnifying a lawsuit based on misconduct are not. We are not persuaded by this argument.

It is foreseeable that the district attorney would have employees and, consequently, that such employees might sue for wrongful termination.

Section 24-10-110(1.5), C.R.S.2001, provides that the public entity is liable for reasonable costs of defense for claims against a public employee arising from an act of the employee during the performance of his duties and within the scope of his employment.

The lawsuit filed by the former employee here was based on conduct by the district attorney within the performance of his duties and the scope of his employment. Moreover, the lawsuit was settled before any willful and wanton conduct was proved.

Under these circumstances, we agree with the trial court that the expenses of defending the lawsuit, including the settlement monies, were expenses contemplated by § 20-1-303 for which Prowers County is liable for its share.

II.

Prowers County also contends that because it has final discretion to approve the district attorney’s proposed budget under § 30-11-107(2), C.R.S.2001, the court erred in requiring it to reimburse the district attorney for unapproved budgetary costs in the form of the defense expenses for the litigation. We disagree with this contention as well.

Section 30-11-107(2) gives the board of county commissioners of each county the exclusive power to adopt the annual budget for the operation of the county government and provides that the final budget determination is binding.

Prowers County asserts that it has constructively denied the district attorney’s request for the litigation expenses. However, even assuming that Prowers County had discretion to deny payment, the trial court could properly set aside such denial as an abuse of discretion where the county had an obligation to pay. Therefore, we disagree with Prow-ers County’s contention that because it did not approve the unforeseen liability expenses in the district attorney’s budget, the trial court was barred from imposing liability on it.

III.

Finally, Prowers County asserts that the assignment of rights by the district attorney’s private insurer to the Pool was invalid because it was made after the lawsuit was filed and it was not disclosed until after judgment was entered. We again find no error in the trial court’s ruling.

The trial court initially ruled that Prowers County “ought to pay its fair share” of the district attorney’s litigation expenses. The court held a hearing after the four counties were unable to agree on the amount of the expenses. At that hearing, the court found:

At the time they were talking about settlement [the district attorney’s private insurer] had an oral agreement with the other plaintiffs in this case that there was an assignment of any recovery due to [the private insurer] if recovery could be had from the state of Colorado or other people.

The court further found that “perhaps [the assignment] was reduced to writing sometime after the settlement, but in the Court’s view it doesn’t make any difference when it was reduced to writing or if it was at all.” Thus, the court ruled that the assignment was valid.

Prowers County characterizes the issue on appeal as whether the Pool and the plaintiff counties “may recover more money than their incurred damages when no assignment of rights has ever been pleaded with respect to the damages in this matter, nor disclosed ... prior to the court ruling” that Prowers County was liable for its share of the expenses. However, Prowers County has not referred us to any authority except Alpine Associates, Inc. v. KP & R, Inc., 802 P.2d 1119 (Colo.App.1990), to support its position, and its reliance on that authority is misplaced. The court in Alpine held that the plaintiffs post-trial assignment did not cure the defect that the lawsuit was not prosecuted in the name of a real party in interest.

Because Prowers County is liable for its share of all the expenses incurred in defending and settling the underlying lawsuit, and no one disputes that both the Pool and the district attorney’s private insurer expended monies on his behalf, Prowers County has not set forth any compelling argument as to how it was prejudiced by the delay in reducing the assignment to writing or disclosing it.

Thus, we conclude that the trial court did not err in ruling that the assignment was valid. See Thistle, Inc. v. Tenneco, Inc., 872 P.2d 1302, 1305 (Colo.App.1993)(“even if there has been'no assignment of the claim at the time suit is instituted, if the plaintiff is assigned the claim at some time prior to trial, such assignment is sufficient”).

Judgment affirmed.

Judge VOGT and Judge CRISWELL, concur.


text:
    Anacleto GONZALES and Donna Gonzales, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 01CA1507.
    Colorado Court of Appeals, Div. III.
    June 20, 2002.

      Jeffrey S. Auxier, AAL, PC, Jeffrey S. Auxier, Salida, Colorado, for Plaintiffs-Appellants.
    Zupkus & Angelí, P.C., Robert A. Zupkus, Laura W. Trask, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge DAVIDSON.

In this declaratory judgment action seeking interpretation of a motor vehicle insurance policy, plaintiffs, Anacleto and Donna Gonzales, appeal from the trial court’s grant of summary judgment for defendant, Allstate Insurance Company. We affirm.

Plaintiffs were injured in a collision in Mexico and were insured by defendant under a policy restricting coverage to automobile accidents occurring in the United States, its territories or possessions, Puerto Rico, and Canada. Plaintiffs filed personal injury protection (PIP) and uninsured/underinsured motorist (UM/UIM) claims, which defendant denied on the ground that the policy did not cover injuries resulting from a collision in Mexico.

On defendant’s motion, the trial court entered judgment in favor of defendant, ruling that there was no coverage for plaintiffs’ claims. Plaintiffs appeal. Our review is de novo. See Martini v. Smith, 42 P.3d 629 (Colo.2002).

I.

As it pertains to PIP coverage, § 10-4-707(1), C.R.S.2001, of the Colorado Auto Accident Reparations Act (the No-Fault Act) states:

The coverages described in [the PIP coverages statute, § 10-4-706] shall be applicable to:
(a) Accidental bodily injury sustained by the named insured when injured in an accident involving any motor vehicle, regardless of whether the accident occurs in this state or in any other jurisdiction ...
(b) Accidental bodily injury sustained by a relative of the named insured under the circumstances described in paragraph (a) of this subsection (1) ...
(c) Accidental bodily injury arising out of accidents occurring vAthin this state sustained by any other person while occupying the described motor vehicle with the consent of the insured or while a pedestrian if injured in an accident involving the described motor vehicle.

(Emphases added.)

Section 10-4-711(3), C.R.S.2001, of the No-Fault Act states:

Notwithstanding any of its other terms and conditions, every complying policy shall afford coverages at least as extensive as the minimum coverages required by operation of sections 10-4-706 and 10-4-707, during such periods of time as the insured motor vehicle is operated in other jurisdictions of the United States, its territories or possessions, and the provinces of Canada, as the statutes, laws, or administrative regulations of such other jurisdictions require with respect to liability, or financial responsibility, and direct benefit, or first party coverages for operators, occupants, and persons involved in accidents arising out of use or operation of motor vehicles within such other jurisdictions.

(Emphasis added.)

Plaintiffs contend that the language “any other jurisdiction” in § 10-4-707(l)(a) renders the policy’s territorial restriction on PIP benefits void. Plaintiffs agree that the policy does not include coverage for accidents occurring in Mexico. They contend, however, that this territorial limitation is void because it does not comply with the statute. See Murphy v. Dairyland Ins. Co., 747 P.2d 691 (Colo.App.1987)(in a policy providing PIP benefits, any provision inconsistent with the requirements of the No-Fault Act is void). Defendant, in contrast, argues that § 10-4-711(3) provides the required territorial coverage for PIP benefits, and, because the policy’s territorial restriction is consistent with that section, it is valid. We agree with defendant.

The goal in interpreting any statute is to determine and give effect to the intent of the General Assembly by looking first to the language of the statute itself. A statute should be “construed as a whole so as to give consistent, harmonious, and sensible effect to all of its parts,” and thus, “the meaning of any one section of a statute must be gleaned from a consideration of the overall legislative purpose.” Norsby v. Jensen, 916 P.2d 555, 559 (Colo.App.1995).

Accordingly, § 10-4-707(l)(a) must be read in the context of the entire statutory section, which is entitled “Benefits-how payable” and which distinguishes the applicability of PIP coverage among three categories of persons, that is, the named insured, relatives of the named insured, and, subject to certain conditions, any other person while occupying the described motor vehicle or while a pedestrian. See § 10-4-707(l)(a)(c); Budget Rent-A-Car Corp. v. Martin, 855 P.2d 1377 (Colo.1993).

For the latter category of persons, the statute limits the applicable coverage to instate accidents, whereas the named insured and resident relatives are covered regardless whether the accident occurred in Colorado or “any other jurisdiction.” Read in proper context, then, the phrase “any other jurisdiction” simply contrasts the two types of coverage, emphasizing that the coverage required for named insureds and resident relatives is not limited, as it is for occupants and pedestrians, to accidents occurring “in this state.”

Moreover, when interpreting two statutory sections, we must attempt to harmonize them to give effect to their purposes and, if possible, reconcile them so as to uphold the validity of both. Norsby v. Jensen, supra. Accordingly, we do not read the phrase “any other jurisdiction” to conflict with the plain language of § 10-4-711(3), which explicitly limits an insurer’s minimum coverage requirements to “other jurisdictions of the United States, its territories or possessions, and the provinces of Canada” and necessarily excludes any requirement that PIP coverage be applicable in jurisdictions other than those listed, such as Mexico. See City of Arvada v. Colorado Intergovernmental Risk Sharing Agency, 19 P.3d 10, 13 (Colo.2001)(under canon of construction “ex-pressio unius est exclusio alterius”' — the inclusion of one thing implies the exclusion of another — statute applies only to entities listed).

We disagree with plaintiffs that § 10-4-711(3) simply coordinates coverages with the requirements of the jurisdictions listed, rather than listing required coverage areas. To the contrary, § 10-4-711(3) serves both purposes. By its plain language, it mandates, inter alia, that every policy provide the coverage specified in § 10-4-707 when the insured vehicle is being operated in the listed jurisdictions, and then it requires that the coverage meet the minimum requirements of those jurisdictions. See Budget Renh-A-Car Corp. v. Martin, supra.

Therefore, we agree with the trial court that, while the provisions of the No-Fault Act do not preclude defendant from providing coverage in Mexico, they also do not mandate that it do so. Because defendant’s policy provides PIP coverage within the jurisdictions listed in § 10-4-711(3), its territorial restriction is in compliance with the No-Fault Act.

II.

Contrary to plaintiffs’ contention, the trial court also correctly determined that defendant’s policy did not cover plaintiffs’ UM7 UIM claims.

Initially, we disagree with plaintiffs that defendant did not properly raise this issue in the trial court. The record indicates that plaintiffs alleged UM/UIM claims in their complaint, defendant’s motion to dismiss included these claims, and the trial court’s order disposed of all of plaintiffs’ claims.

As to the merits of their argument, plaintiffs again do not dispute that their policy limits all UM/UIM coverage to accidents occurring in the United States, its territories or possessions, Puerto Rico, and Canada. However, unlike their argument as to the policy’s PIP provisions, plaintiffs do not assert any statutory requirement that UM/UIM coverage be applicable to accidents occurring in Mexico. They suggest, nevertheless, that to permit such territorial restriction of UM/UIM coverage would violate Colorado’s public policy. We disagree.

It is undisputed that the public policy underlying UM/UIM protection in Colorado is to assure that a person injured by an uninsured motorist is compensated to the same extent as one injured by a motorist who is insured in compliance with the law. Thus, to satisfy such policy requirements, an insurer need only offer UM/UIM coverage that is at least as extensive as the insurance policy’s liability coverage. DeHerrera v. Sentry Ins. Co., 30 P.3d 167 (Colo.2001); Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117, 518 P.2d 1177 (1974); see § 10-4-609(l)(a), C.R.S.2001 (describing UM/UIM protection).

Under the No-Fault Act, the territorial requirements for liability coverage are identical to the PIP requirements, which, as discussed, include only the United States, its territories or possessions, and Canada. See §§ 10-4-706(l)(a), 10-4-711(3), C.R.S.2001. Thus, because § 10-4-711(3) does not require that a liability policy cover an accident that occurs in Mexico, there is no corollary requirement that more extensive UM/UIM coverage be provided. See DeHerrera v. Sentry Ins. Co., supra.

Although their specific statutory provisions vary, the courts of an overwhelming number of other jurisdictions have held that similar territorial limitations do not violate public policy so long as they apply equally to statutorily mandated uninsured motorist and liability coverages. See Mijes v. Primerica Life Ins. Co., 317 Ill.App.3d 1097, 251 Ill.Dec. 589, 740 N.E.2d 1160 (2000)(listing cases); see also Progressive Cas. Ins. Co. v. Ferguson, 134 F.Supp.2d 1159 (D.Haw.2001)(discussing impact on uninsured motorist rates); Curtis v. Allstate Ins. Co., 473 F.Supp. 315, 317 (E.D.La.1979)(“Insurers providing [uninsured motorist] coverage must base then-rates on the risk that the insured will be struck by an uninsured vehicle. It is certainly rational to exclude countries where the number of uninsured motorists is unknown or so high as to make coverage impractical.”), ajfd, 631 F.2d 79 (5th Cir.1980).

The judgment is affirmed.

Judge KAPELKE and Judge ROY concur.


author: Judge TAUBMAN.

text:
    FEDERAL EXPRESS, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and William McElwain, Respondents.
    No. 01CA2563.
    Colorado Court of Appeals, Div. II.
    June 20, 2002.
    Ritsema & Lyon, P.C., Michael A. Perales, Denver, Colorado, for Petitioner.
    No Appearance for Industrial Claim Appeals Office of the State of Colorado.
    Peter E. Morgan, Englewood, Colorado, for Respondent William McElwain.
   Opinion by

Judge TAUBMAN.

In this workers’ compensation proceeding, Federal Express (employer) seeks review of the final order of the Industrial Claim Appeals Office (Panel) upholding the order of the Administrative Law Judge (ALJ) which reopened the claim of William McElwain (claimant) and awarded him additional benefits. We affirm.

Claimant sustained an admitted injury on March 17, 1994, when he fell into the back of a delivery truck. He was diagnosed with postconcussive syndrome, and his claim was deemed closed by final admission on July 29, 1994.

On December 15, 1999, claimant petitioned to reopen his claim, alleging a mutual mistake of fact and a worsened condition. He asserted that the fall caused a traumatic brain injury with cognitive impairment, which went undiagnosed at the time his claim was closed.

Employer moved to dismiss. Employer argued that pursuant to § 8-43-303(1), C.R.S.2001, claimant was required to obtain review of his prior award within six years after his industrial injury and that, although his petition to reopen was filed within that period, he had failed to file his application for hearing until July 2000, and therefore, was precluded from meeting the statutory deadline.

Relying upon Mascitelli v. Giuliano & Sons Coal Co., 157 Colo. 240, 402 P.2d 192 (1965), the ALJ found that claimant had tolled the applicable statutory period when he filed his petition to reopen. The ALJ, accordingly, denied employer’s motion to dismiss. The ALJ also granted the petition to reopen, holding that claimant had suffered a worsened condition, the prior final admission was based on a mutual mistake of fact, and that claimant was entitled to further benefits.

The ALJ’s order was upheld by the Panel on review.

In this appeal, employer again argues that claimant’s petition to reopen was untimely and further contends that the ALJ erred in relying upon Mascitelli v. Giuliano & Sons Coal Co., supra. We disagree.

As pertinent here, § 8^43-303(1) provides that “[a]t any time within six years after the date of injury, the director or an administrative law judge may, after notice to all parties, review and reopen any award on the ground of fraud, an overpayment, an error, a mistake, or a change in condition.” (Emphasis supplied.)

In Mascitelli, which was decided under a prior version of the reopening statute, the supreme court noted that the statute did not provide the exact point at which the six-year limitation becomes effective. The court concluded that the statute did not require the Industrial Commission to act within the specified period, but rather that filing a notice to have a claim reopened before the end of the period effectively tolls the running of the statute. The court observed that, under the law then in effect, the workers’ compensation act was to be liberally construed to effectuate its humanitarian purpose of assisting injured workers. See Colo. Sess. Laws 1943, § 389 at 423. The Mascitelli court also found that its construction of the reopening statute was consistent with many decisions in which the filing of a pleading or motion had been held to toll specified time limitations. The court reasoned that to hold otherwise would create uncertainty because no relief would be available if the Industrial Commission failed or refused to act within the six-year period.

Employer maintains that Mascitelli is no longer good law. In support, employer refers to § 8^3-201, C.R.S.2001, which provides that the “facts in a workers’ compensation case shall not be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer.” However, as the Panel noted, § 8-43-201 pertains to the interpretation of facts or evidence and does not conflict with the rule of liberal statutory construction, which has been reaffirmed in recent supreme court decisions. See Weld County Sch. Dist. RE-12 v. Bymer, 955 P.2d 550 (Colo.1998); Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo.1996).

We also disagree with employer that Mas-citelli is legally distinguishable. Although, as employer correctly points out, current law requires the scheduling of a hearing within eighty to one hundred days after the filing of an application for hearing, see §§ 8^43-209, 8-43-211, C.R.S.2001, this change does not vest the claimant with control over the timing of an adjudication. As the Panel observed, other contingencies remain beyond the claimant’s control, such as the docketing of the claim or the granting of continuances, which affect the timing of an adjudication. Thus, this rationale for Mascitelli retains its validity under the present act.

We agree with the Panel that the ALJ properly relied upon the Mascitelli decision to find that claimant’s petition to reopen was not time barred and that the six-year period

to reopen a claim is tolled on the date claimant files a petition to reopen.

The order is affirmed.

Judge PLANK and Judge DAILEY concur.


author: HODGES, J.

text:
    2002 OK 37
    STATE of Oklahoma ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. Barry W. BENEFIELD, Respondent.
    No. SCBD 4654.
    Supreme Court of Oklahoma.
    May 7, 2002.
    Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for Petitioner.
    Barry W. Benefield, Oklahoma City, OK, Pro Se.
   HODGES, J.

¶ 1 Complainant, the Oklahoma Bar Association (OBA), alleged four counts of misconduct warranting discipline against respondent attorney, Barry W. Benefield (Respondent). The complaint alleged that Respondent had violated rules 1.1, 1.3, 1.4, 1.5(a), 1.16(d), and 8.1 of the Oklahoma Rules of Professional Conduct (ORPC), and rule 5.2 of the Rules Governing Disciplinary Proceedings (RGDP).

I. FACTS

¶ 2 The facts are stipulated and supported by the record.

A. COUNT I

¶3 In July of 2000, Rita Brokeshoulder retained Respondent to file bankruptcy proceedings on her behalf. She paid Respondent $300.00 as a retainer. Brokeshoulder called Respondent several times about filing the bankruptcy petition. He responded to a few of the messages, but in September of 2000, he quit returning her calls altogether. He did some research in preparation for filing the bankruptcy. However, he never completed the petition or provided Brokesh-oulder with a draft. At the time the complaint against him was filed, Respondent had not returned any of the retainer and had not returned Brokeshoulder’s personal papers.

B. COUNT II

¶4 In April 2000, Clara Kaniatobe paid Respondent $300.00 to file a bankruptcy petition on behalf of her daughter Holly who was incarcerated. Respondent and Holly understood that he would monitor the efforts by the victim of Holly’s crime to seek restitution and file for bankruptcy if the victim obtained a judgment against Holly. Kaniatobe expected Respondent to file the bankruptcy petition during Holly’s incarceration.

¶ 5 Kaniatobe repeatedly urged Respondent to file the bankruptcy petition on behalf of Holly. Respondent would not respond to Kaniatobe’s messages and did not properly communicate with Holly concerning the bankruptcy proceedings.

¶ 6 Respondent failed to file the bankruptcy petition. Kaniatobe asked for a refund and for the return of personal papers. At the time complaint was filed, Respondent had not returned any papers or refunded the retainer. However, Respondent has reestablished a friendly relationship with Kaniatobe and Holly.

C.COUNT III

¶ 7 In July of 2000, Josephine Porter paid Respondent a $900.00 retainer to file a probate petition. Porter repeatedly urged Respondent to file the petition. Initially, Respondent returned some of Porter’s messages but eventually ceased all communications with Porter. Finally, Porter, by certified letter, released Respondent as her attorney and requested the return of personal papers. Respondent did not respond to the letter and request. At the time the complaint was filed, Respondent had not refunded any of the retainer or returned the personal papers.

D. COUNT IV

¶ 8 When contacted by the OBA on May 4, 2001, asking Respondent to respond to two of the grievances, he failed to do so. He also failed to acknowledge an August 21, 2001 letter asking him to respond to the third grievance. On July 3, 2001, Respondent called the OBA and asked for an extension of time to file a response. Respondent and the OBA agreed that Respondent would file his responses no later than July 16, 2001. Respondent did not file his responses until July 24, 2001. Respondent agreed to meet with the OBA’s investigator on September 19, 2001, on September 21, 2001, and again on September 26, 2001, but failed to appear each time.

¶ 9 The Professional Responsibility Tribunal (PRT) held a hearing on the matter. Thereafter, Respondent reimbursed the complaining clients all attorney fees paid to him.

II.STANDARD OF REVIEW

¶ 10 The standard of review in attorney disciplinary proceedings is de novo. This Court decides whether misconduct has occurred and what discipline is appropriate. Accordingly, this Court is not bound by the PRT’s findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline which are only advisory.

III.ENHANCEMENT

¶ 11 In April of 1991, the Professional Responsibility Commission privately reprimanded Respondent for similar behavior. He had been retained to acquire an original birth certificate for a client. He failed to take steps to obtain the birth certificate. Respondent was asked by the OBA to respond to the client’s grievance. He failed to file a written response, and his response was obtained by deposition pursuant to a subpoena.

IV. VIOLATIONS

¶ 12 The PRT found that Respondent violated the ORPC and should be disciplined. Rule 1.1 requires a lawyer to provide competent representation, including adequate preparation, and rule 1.3 requires diligence and promptness. Under rule 1.4, a lawyer is to keep a client reasonably informed about the status of a matter and to respond to reasonable requests for information. Pursuant to rule 1.5, a lawyer must charge a reasonable fee. Rule 1.16(d) provides that upon discharge from representation, a lawyer must surrender “papers and property to which the client is entitled” and refund any unearned advanced fee payments. Under rule 8.1 of the ORPC and 5.2 of the RGDP, a lawyer must respond within twenty days to the OBA’s request for information regarding a grievance against the lawyer. Respondent stipulated to violating these rules of conduct which govern lawyers’ actions. After reviewing the record, we agree that Respondent has violated rules 1.1,1.3,1.4,1.5,1.16(d) and 8.1 of the ORPC and rule 5.2 of the RGDP and should be disciplined for the violations.

V. DISCIPLINE

¶ 13 The purposes of lawyer discipline are to protect the public, protect the court, preserve the integrity of the bar, and deter misconduct by both the lawyer being disciplined and other members of the bar. The PRT and the OBA recommend that Respondent be publicly censured.

¶ 14 This Court has imposed discipline for neglect of clients’ matters. The discipline has ranged from public censure to a two-year suspension. In State ex rel. Oklahoma Bar Ass’n v. Jenkins, this Court suspended a lawyer from the practice of law for two-years and one-day for neglecting his clients, failing to keep his clients informed, charging unreasonable fees, and misrepresenting facts to a court. In State ex rel. Oklahoma Bar Ass’n v. Brewer, this Court found public censure to be the appropriate discipline for a lawyer who failed to file appropriate papers to initiate proceeding for his client, failed to keep his client reasonably informed, and failed to respond to the OBA’s requests for information regarding grievances. In an earlier proceeding, the lawyer had been publicly reprimanded for failure to respond to the OBA’s request for information concerning a complaint. In State ex rel. Oklahoma Bar Ass’n v. Green, this Court imposed a public censure for failing to provide competent representation, failing to act with reasonable diligence and promptness, and failing to adequately communicate with the client.

¶ 15 Respondent has been neglectful, rather than acting in a deliberate manner. He has reimbursed the attorney fees his clients had advanced, albeit after the hearing by the PRT. He is remorseful of his behavior and acknowledged wrong doing. However, Respondent has shown a pattern of neglect in 1991 when privately censored by the Professional Responsibility Commission, in his actions which are the bases of this proceeding, and in his dealings with the OBA in its investigation of the grievances. For these reason, we believe the appropriate discipline is suspension from the practice of law for a period of 60 days.

¶ 16 Respondent has agreed to bear the costs of these proceedings. Respondent is suspended from the practice of law for a period of 60 days from the effective day of this pronouncement and is ordered to pay costs in the amount of $376.66.

RESPONDENT SUSPENDED FOR A PERIOD OF 60 DAYS; ORDERED TO PAY COSTS.

¶ 17 HARGRAVE, C.J., LAVENDER, KAUGER, SUMMERS, and WINCHESTER, JJ., concur.

¶ 18 WATT, V.C.J., with whom BOUDREAU, J., joins dissent. I would suspend the respondent from the practice of law for six (6) months.

¶ 19 OPALA, J., not participating.

      . Rule 1.1 of the ORPC provides:
      A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

      . Rule 1.3 of the ORPC provides:
      A lawyer shall act with reasonable diligence and promptness in representing a client.

      . Rule 1.4 of the ORPC provides:
      (A) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (B) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . Rule 1.5(a) of the ORPC provides:
      A lawyer’s fee shall be reasonable....

      . Rule 1.16(d) of the ORPC provides:
      Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

      . Rule 8.1 of the ORPC provides:
      [A] lawyer ... in connection with a disciplinary matter, shall not ... knowingly fail to respond to a lawful demand for information from ... a disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

      . Okla. Stat. tit. 5, ch. 1, app. 3 A (2001).

      . Rule 5.2 of the RGDP provides:
      After malting [a] preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall ... (2) file and serve a copy of the grievance ... upon the lawyer, who shall thereafter make a written response which contains a full and fair disclosure of all facts and circumstances pertaining to the respondent lawyer's alleged misconduct unless the respondent’s refusal to do so is predicated upon expressed constitutional grounds.... The failure of a lawyer to answer within twenty (20) days after service of the grievance ... or such time as may be granted by the General Counsel, shall be grounds for discipline.

      . Okla. Stat. tit. 5, ch. 1, app. 1 A (2001).

      . State ex rel. Oklahoma Bar Ass'n v. Eakin, 1995 OK 106, ¶ 9, 914 P.2d 644, 648.

      . State ex rel. Oklahoma Bar Association v. Todd, 1992 OK 81, ¶2, 833 P.2d 260, 261.

      . Id.

      . Id.

      . State ex rel. Oklahoma Bar Ass'n v. Busch, 1993 OK 72, ¶ 16, 853 P.2d 194, 196.

      . State ex rel. Oklahoma Bar Ass'n v. Brewer, 1999 OK 101, ¶ 15, 998 P.2d 605, 610.

      . 2001 OK 54, 27 P.3d 91.

      . 1999 OK 101, 998 P.2d 605.

      . 1997 OK 39, 936 P.2d 947.


author: HARGRAVE, Chief J.

text:
    2002 OK 43
    In the Matter of the REINSTATEMENT OF Tom L. CROSS to Membership in the Oklahoma Bar Association and in the Roll of Attorneys.
    No. S.C.B.D. 4630.
    Supreme Court of Oklahoma.
    May 21, 2002.
   ¶ 0 ORDER OF REINSTATEMENT TO OKLAHOMA BAR ASSOCIATION AND ROLL OF ATTORNEYS

HARGRAVE, Chief J.

¶ 1 Petitioner, Tom L. Cross, was suspended from the practice of law for a period of eighteen (18) months by this Court on December 17, 1996. State ex rel. Oklahoma Bar Association v. Cross, 1996 OK 131, 932 P.2d 1107. His name was stricken from the Roll of Attorneys in 1997 for his failure to pay his Bar dues for the year 1996. Order of Sept. 8, 1997, S.C.B.D. No. 4181, 68 O.B.J. 2949 (Sept. 20, 1997). He now seeks reinstatement to membership in the Bar Association and requests that his name be added to the Roll of Attorneys.

¶2 In 1997 Petitioner admitted that he violated Rule 1.8(a) and (b) of the Oklahoma Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A, when he borrowed money from a client without filing any documents to secure the client’s interest and without advising the client to seek independent legal counsel to represent her in the transaction. State ex rel. Oklahoma Bar Association v. Cross, supra. Petitioner’s suspension for eighteen (18) months would not, by itself, ordinarily require a Rule 11 reinstatement proceeding before a Trial Panel of the Professional Responsibility Tribunal. See 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.8, Rules Governing Disciplinary Proceedings. However, a trial panel proceeding is required when a lawyer’s name is stricken from the Roll of Attorneys for nonpayment of dues. 5 O.S.2001 Ch. 1, App. 1, Art. 8 § 5; 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.1. See Matter of Reinstatement of Phillips, 1996 OK 62, 919 P.2d 419, 420-421.

¶3 Rule 11.5 requires the Trial Panel to make findings as to (1) the good moral character of the applicant, (2) whether the applicant engaged in the unauthorized practice of law and (3) whether the applicant possesses the competency and learning in the law required for admission. Matter of McConnel, 1994 OK 107, 886 P.2d 471, 473. The Trial Panel made the following findings:

1. That Petitioner has not engaged in the practice of law in Oklahoma or any other state after his suspension by this Court.
2. That Petitioner completed 62.5 hours of continuing legal education in 1999 and 2001, and has kept himself informed on current developments of the law by reading the Oklahoma Bar Journal.
3. That Petitioner, if reinstated, will return to practicing law and will affiliate with a friend who practices law in Oklahoma.
4. That Petitioner called several witnesses to testify on his moral character, including friends, former co-worker and supervisor, a former client, and a lawyer.

Since 1999 Petitioner has also worked as a research assistant for a lawyer. The Trial Panel concluded that Petitioner had established, by clear and convincing evidence, the requirements necessary for reinstatement.

¶4 In reinstatement proceedings, this Court sits in exercise of its exclusive original jurisdiction, and we use a de novo review of the record before us. Matter of Reinstatement of McKenzie, 1996 OK 72, ¶ 2, 925 P.2d 18, 19; Matter of McConnel, 1994 OK 107, 886 P.2d 471, 473. In a reinstatement proceeding after imposition of discipline we consider (1) the present moral fitness of the applicant, (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession, (3) the extent of the applicant’s rehabilitation, (4) the seriousness of the original misconduct, (5) the conduct subsequent to discipline, (6) the time that has elapsed since the original discipline, (7) the applicant’s character, maturity, and experience at the time of discipline, and (8) the applicant’s present competence in legal skills. In re Reinstatement of Pearson, 2000 OK 61, ¶ 3, 9 P.3d 692, 693 -694, citing, Matter of Reinstatement of Kamins, 1988 OK 32, ¶ 20, 752 P.2d 1125, 1130. Upon de novo review of the record we conclude that Petitioner has satisfied these requirements by clear and convincing evidence, except as to payment of costs in his disciplinary proceeding.

¶ 5 In State ex rel. Oklahoma Bar Association v. Cross, 1996 OK 131, 932 P.2d 1107, we said that “Respondent is ordered to pay costs in the amount of $834.58 within thirty (30) days of the date of this opinion.” Id. 932 P.2d at 1110. Failure of a disciplined lawyer to pay assessed costs within ninety (90) days after this Court’s order “shall result in automatic suspension from the practice of law until further order of the Court.” Rule 6.16. The trial panel record herein, including Petitioner’s application for reinstatement, is silent on whether costs were paid in S.C.B.D. No. 4162. The docket of this Court in S.C.B.D. No. 4162, does not show any filing by the Bar Association that Petitioner either paid, or did not pay, the costs assessed in that matter. We are of the opinion that a failure to pay the assessed costs in a prior disciplinary matter is relevant to reinstatement since it is an act that results in an automatic suspension from the practice of law. If Petitioner has not paid the costs assessed in S.C.B.D. No. 4162, he must do so prior to reinstatement.

¶ 6 In Matter of Reinstatement of Phillips, 1996 OK 62, 919 P.2d 419, we said that “When a member of the Bar Association is suspended for non-payment of dues that member may be reinstated upon payment of delinquent dues, expense charges, and dues for the current year.” Id. 919 P.2d at 421. In discussing his finances Petitioner testified that “I have been able to pay my past dues back to the Bar or other cost.” Tr. at 36. The record is otherwise silent on whether Petitioner paid his assessed costs, 1996 dues, or the dues for any year since 1996. In Phillips the Bar Association and the lawyer filed a joint stipulation stating the amount of delinquent dues. Phillips, 919 P.2d at 421. No such stipulation appears in the record of this proceeding. The application for assessment of costs by the Bar Association does not include any amounts for delinquent dues. The record is not clear and convincing that Petitioner has paid his delinquent dues.

¶7 We conclude that Petitioner has met his burden for reinstatement except as to showing payment of costs in S.C.B.D. No. 4162, and the amount of Bar Association dues he has paid, or will pay upon reinstatement. The Application to Assess Costs by the Bar' Association in this proceeding is hereby granted. Rule 11.1. It is hereby ordered that Petitioner shall pay the amount of three-hundred and nineteen dollars and fifty-one cents ($319.51) to the Bar Association.

¶ 8 It is hereby ordered that, if not already paid, prior to reinstatement Petitioner shall pay the costs assessed in S.C.B.D. 4162. It is hereby ordered that, if not already paid, prior to reinstatement Petitioner shall pay the amount of his delinquent and current Bar Association dues to the Bar Association. Upon Petitioner’s payment of the costs in S.C.B.D. No. 4162, the costs assessed herein, and delinquent and current dues required herein, the Executive Director of the Oklahoma Bar Association shall file in this proceeding a Notification that Petitioner has satisfied payment of costs and dues required by this Order. Phillips, 919 P.2d at 421. Petitioner shall be reinstated to membership of the Bar Association and his name placed on the Roll of Attorneys upon the date the Executive Director files the Notification herein.

¶ 9 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 20th DAY OF MAY, 2002.

¶ 10 ALL JUSTICES CONCUR.