W.C. No. 4-691-845.Industrial Claim Appeals Office.
September 13, 2007.
ORDER DISMISSING PETITION TO REVIEW.
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 9, 2007 that denied and dismissed the claimant’s claim for compensation. We dismiss the petition to review without prejudice.
A hearing was held on the issue of whether the claimant sustained a compensable injury and, if so, whether he is entitled to medical benefits and temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant stated that on September 5 or 6, 2005, he sustained a cut at the base on his great left toe, when he stepped on a piece of metal, glass, or other debris. He cleaned and treated the wound, and informed his supervisor of the injury. The supervisor informed him that he would be fired if he reported a work-related injury. The employer’s records of the claimant’s work schedule indicate that the claimant did not clock in on September 5th, but that he did so on September 6th. The medical records indicate that the claimant injured himself on September 5th. On the evening of September 7th the claimant sought urgent care because his left leg was painful and swollen, his toes were purple, and he had a small ulcer on his lower right leg. He was diagnosed with acute left limb ischemia and procedures were performed to avoid the need to amputate the claimant’s leg. The doctors attributed the claimant’s condition to his diabetes, peripheral vascular disease, uncontrolled hypertension and elevated cholesterol. On September 17, 2005 the claimant’s left great toe was amputated. He returned to work on March 6, 2006. In June 2006 he consulted Dr. Field because of an ulceration on his left second toe. Dr. Field noted
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that the claimant had suffered from leg swelling since December 2005 and prescribed custom shoes and a cream to control a fungal condition. The claimant filed a claim for workers’ compensation benefits on July 14, 2005. Dr. Jacobs, who performed an independent medical examination, testified that the claimant suffered from diabetes, high blood pressure, high levels of triglycerides, and peripheral vascular disease, none of which were well-controlled. Dr. Jacobs testified that the claimant’s laceration of his toe did not cause the subsequent need for surgery, and that all of the treatment the claimant received was attributable to his underlying metabolic diseases. The ALJ found that the claimant failed to establish that his need for medical treatment was caused by the laceration he sustained on his toe.
Based upon his factual findings, the ALJ concluded that the claimant had failed to carry his burden of proving a compensable injury. Accordingly, he denied and dismissed the claim for compensation.
Following the hearing but prior to entry of an order the claimant filed a Motion to Amend to Conform With Evidence (In the Alternative). The motion recited that the claimant continued to maintain that the laceration of his toe caused the ensuing medical problems and the eventual amputation of the toe. However, in the alternative, the motion asserted that the claimant sustained an occupational disease caused by his wearing steel toed boots on the job. The motion sought amendment of the pleadings so that the claim of an occupational disease would be adjudicated. The motion was apparently accompanied by correspondence to the ALJ requesting that the ALJ consider certain factual matters in connection with the claim for an occupational disease. The motion was opposed and by order dated April 20, 2007, the ALJ denied the motion. By order dated April 30, 2007, the ALJ denied the claimant’s motion for reconsideration.
The claimant appealed the ALJ’s order and advances the sole argument that the ALJ erred in denying his motion to amend the pleadings to conform to the evidence. In our view the ALJ’s denial of the motion to amend is not presently final and reviewable.
The Act grants us jurisdiction only to review an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty. . . .” Section 8-43-301(2), C.R.S. 2006. Thus, an order must satisfy the finality criteria set forth in that statute or we lack jurisdiction. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Instead, interlocutory orders are reviewable when appealed incident to a final order. American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985). The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal
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litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
It is not necessary that all aspects of a claim be ruled upon for an order to be “final.” However, the order must “finally dispose” of the issue presented. Bestway Concrete, Inc. v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo.App. 1999). Similarly, where the effect of an order is to terminate the litigation and deny relief, the order is final and reviewable pursuant to § 8-43-301(2). See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, supra.
Here, however, as we understand the proceedings below, the ALJ’s refusal to permit the claimant to amend his pleadings did not “finally dispose” of the claimant’s contention that wearing boots to work caused him to suffer an occupational disease. Although the ALJ’s order denying the motion to amend does not contain any detailed discussion of the grounds relied upon, it does state that “claimant failed to properly raise a claim for compensation based on an occupational disease. . . .” Thus, we presume that the ALJ accepted and agreed with the respondents’ opposition to the motion, which was based upon the argument that the asserted occupational disease was a new theory that had not previously been advanced. Nothing in the ALJ’s order purports to preclude the claimant in the future from separately advancing a claim for compensation based upon an occupational disease. The order merely denies the claimant’s request to add that theory of recovery to the present claim. Without expressing any opinion concerning the correctness of the ALJ’s inference that the occupational disease claim was a new one, we note that the present claim was based upon the assertion that the claimant cut his toe and the occupational disease claim upon the assertion that his work boots aggravated the condition caused by his various preexisting conditions. In any event, the ALJ’s order does not finally dispose of the occupational disease claim. It merely denies the claimant the opportunity to have it adjudicated in connection with the present claim.
We are aware that the ALJ’s order might ultimately have the effect of finally disposing of the occupational disease claim. It may be, for example, that preclusive principles will result in dismissal of the future claim based upon an occupational disease. Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006) (claim preclusion bars relitigation of claims actually decided and claims that might have been decided). The point, however, is that the ALJ’s order does not presently preclude the claimant from asserting and litigating the claim based upon an occupational disease. Our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction Buschmann v. Gallegos Masonry, Inc.,
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805 P.2d 1193 (Colo.App. 1991). Accordingly, because the ALJ’s order denying the claimant’s request to amend the pleadings is not now final and reviewable we have no jurisdiction to review it.
IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated May 9, 2007, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Examiner Schrant dissents: I respectfully disagree with my colleagues. The claimant contends the ALJ erred in denying his motion to amend the pleadings to conform to the evidence to include a claim for occupational disease suffered to his left foot caused by the steel toed boots he was required to wear at work by the employer. The majority has determined that the order is interlocutory. In my opinion there is no jurisdictional bar to our review of the claimant’s contention that the ALJ erred in his denial of the motion to amend the pleading.
In my opinion the effect of the ALJ’s order denying the claimant’s motion to amend the pleadings is to deny the claimant benefits to which he claims entitlement from these respondents. If the order denying the claimant’s motion to amend the pleadings to conform to the evidence is affirmed then the preclusive principles outlined in Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006) require dismissal of the claim against the respondents based upon an occupational disease.
In my view the majority’s decision to dismiss the appeal as interlocutory has the effect of allowing the claimant, after a hearing on the merits, to split off an occupational disease claim from his claim of an accidental injury and then proceed to a second hearing this time on an occupational disease claim involving the same claimed injury and arising from the same transaction or series of connected transactions. In my view this is prohibited by claim preclusion. Claim preclusion bars a litigant from splitting claims into separate actions
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because once judgment is entered in an action it “extinguishes the plaintiff’s claim. . . . includ[ing] all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Holnam, Inc. v. Industrial Claim Appeals Office supra, citing Argus Real Estate, Inc. v. E-470 Pub. Highway Auth. 109 P.3d 604 (Colo. 2005). Thus, claim preclusion bars relitigation not only of all claims actually decided, but of all claims that might have been decided if the claims are tied by the same injury. Farmers High Line Canal Reservoir Co. v. City of Golden, 975 P.2d 189, 199 (Colo. 1999). In my opinion the decision of the majority encourages rather than avoids piecemeal litigation. I would review the order on whether the ALJ abused his discretion in denying the claimant’s motion to amend the pleadings to conform to the evidence.
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MARSHALL GUY PETERS, HENDERSON, CO, (Claimant)
CON AGRA FOODS INC, COMMERCE CITY, CO, (Employer)
SEDGWICK CLAIMS MANAGEMENT SERVICES, Attn: MANDY RADY, OMAHA, NE, (Insurer)
LAW OFFICE OF OTOOLE SBARBARO PC, Attn: NEIL D OTOOLE ESQ, DENVER, CO, (For Claimant)
RITSEMA LYON PC, Attn: KYLE L THACKER ESQ, DENVER, CO, (For Respondents)