dissenting.
I respectfully dissent. In my opinion, both the trial court and the majority erroneously concluded the trial court had no authority to entertain Medical Center's claim against Baker. I also disagree attorney fees are proper.
I
It is true that when the legislature has provided an administrative agency with exclusive primary jurisdiction to decide a class of issues, the courts may not exercise jurisdiction until all administrative remedies have been exhausted. Indiana Forge and Machine Co. v. NIPSCO (1979), Ind.App., 396 N.E.2d 910, 912. The "class of issues" left to the worker's compensation board, however, has traditionally been limited to questions of compensation arising between employees or their dependents and employers or employers' insurance carriers, Bituminous Casualty Corporation v. Powell (1985), 101 Ind.App. 90, 93, 194 N.E. 495, 496, and not to disputes arising between an employee and a health care provider.
Prior to the 1991 amendment of IND. CODE 22-3-8-5, no section of the Worker's Compensation Act expressly addressed the issue confronting us now, namely, where a health care provider's claim against an employee for services rendered but unpaid should be brought. Neither have I found any Indiana case law directly on point. Our supreme court has held, however, that a state court has jurisdiction to hear an action by a physician against an employer for services rendered to an employee. Hoffman v. Brooks Construction Co. (1941), 220 Ind. 150, 158, 41 N.E.2d 613, 616 (remarking that "[wle can see no benefit which would accrue to the employee by forcing a physician to file a claim for services rendered under a contract with an employer, with the Industrial Board, rather than in a court"). Based on Hoffman, Bituminous Casualty Corporation, and the lack of statutory language directing otherwise, I believe that prior to the effective date of the amendment, July 1, 1991, a health care provider could properly bring an action against an employee in state *139court for services rendered but unpaid.2
Here, Medical Center rendered services to Baker in 1990, was not entirely paid for rendering those services, and thereby acquired a vested property right, all before the amendment to IND.CODE 22-8-8-5 became effective on July 1, 1991. General rules of statutory construction require that statutes be given prospective effect only, unless the legislature unambiguously and unequivocally intended retrospective effect as well. State ex rel. Indiana State Board of Dental Examiners v. Judd (1990), Ind.App., 554 N.E.2d 829, 832. We "especially disfavor retroactive application of statutes which would infringe upon rights or violate some constitutional guaranty." Id. I find no legislative intent to give IND.CODE 22-8-8-5's amendment retroactive application. Moreover, the amendment infringed Medical Center's rights by declaring "[the employee and the employee's estate do not have liability to a health care provider for payment for services obtained [pending adjudication of impairment]." Not only could Medical Center properly bring its action against Baker in state court prior to July 1, 1991, but it also could properly do so after July 1, 1991, as well.
II
In order to impose attorney fees under IND.CODE 34-1-82-1, the trial court must find the claim is frivolous, unreasonable, or groundless. The trial court found Medical Center's claim was frivolous. As the majority observes, a "frivolous" claim is one taken primarily to harass, one made without an underlying good faith and rational argument, or one lacking a good faith and rational argument for the extension, modification, or reversal of existing law. Kahn v. Cundiff (1989), Ind.App., 533 N.E.2d 164, 167, adopted on transfer, 543 N.E.2d 627. Medical Center's claim against Baker is not frivolous. To the contrary, I find the choice to file in the Lake County Superior Court well-taken and supported by law. I believe the trial court improperly awarded attorney fees.
I am even more disturbed by the majority's decision to award appellate attorney fees. Although Ind. Appellate Rule 15(G) may support such an award, Orr v. Turco Mfg. Co, Inc. (1987), Ind., 512 N.E.2d 151, 152, the rule may not be imposed to punish an appellant unless the contentions and arguments in the appeal are "utterly devoid of all plausibility." Schlosser v. Bank of Western Indiana (1992), Ind.App., 589 N.E.2d 1176, 1180. The majority implicitly concludes that a mere "cursory review" of the law amply demonstrates the utter lack of plausibility in Medical Center's choice to sue in Lake County Superior Court. I strongly disagree with this conclusion and would suggest the majority cast its cursory review toward Bituminous Casualty Corporation, Hoffman, Board of Dental Examiners, and Schlosser. Together, these show Medical Center's action was plainly not "utterly devoid of all plausibility."
For the reasons given above, I dissent. I would hold the trial court had authority to hear Medical Center's claim against Baker, and I would not allow either award of attorney fees.
. This should particularly be the case when, as alleged here, the employee-and not the employer or the employer's insurer-has requested the services rendered by the health care provider.