W.C. No. 4-114-314Industrial Claim Appeals Office.
November 15, 2002
ORDER
The respondent seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied the respondent’s motion to reconsider. We dismiss the petition to review without prejudice.
The claimant failed to appear at a hearing scheduled for May 6, 2000. On May 10, 2002, the ALJ mailed an order requiring the claimant to show cause, within thirty days, why the claim should not be dismissed for lack of prosecution. The claimant mailed a response to the order on June 11, which was received on June 12, 2002. On June 13, 2002, the ALJ issued an Order Discharging Show Cause.
On June 28, 2002, the respondent filed a motion to reconsider the order discharging the order to show cause. The respondent argued, inter alia, the claimant’s response to the show cause order was not timely filed. The ALJ denied the motion to reconsider on July 10, 2002, and the respondent filed a petition to review. The petition to review reiterates the argument concerning the timeliness of the claimant’s response to the show cause order.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied with an “order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” Orders which neither award nor deny benefits or penalties are interlocutory and not subject to immediate review. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Hence, an order denying a motion to dismiss is not final and appealable because it does not award or deny benefits or penalties. See Provo v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA1239, September 12, 2002).
Neither the June 13 order discharging the order to show cause, nor the July 10 order denying the respondent’s motion to reconsider, awards or denies any benefits or penalties. Hence, both orders are interlocutory and not subject to immediate review under § 8-43-301(2). Consequently, the respondent’s petition to review must be dismissed without prejudice.
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order date July 10, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order was mailed, pursuant to sections 8-43-301(10) and 307, C.R.S. (2002 Cum. Supp.).
Copies of this decision were mailed ________November 15, 2002 _ to the following parties:
Gloria Berumen, 485 Crestmoor Rd., Canon City, CO 81212
Arapahoe County Social Services, c/o George Shipley, Personnel Department, 5334 S. Prince St., Littleton, CO 80166
Judy Montoya, CIRSA, 3665 Cherry Creek Drive North, Denver, CO 80209
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado