IN THE MATTER OF THE CLAIM OF TOMAS M. GONZALES, Claimant v. CITY OF FORT COLLINS, Self-Insured Employer and CCMSI (TPA), SAFETY NATIONAL CASUALTY CORPORATION (excess carrier). Insurer, Respondents.

W. C. Nos. 4-365-220, 4-365-220.Industrial Claim Appeals Office.
March 16, 2007.

ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated November 21, 2006, that dismissed the claimant’s petition to review orders dated October 4, 2006 and October 11, 2006. The orders concern the dismissal of respondent Safety National Casualty Corporation (Safety National) as a named party to the claim for benefits. We dismiss the claimant’s appeal without prejudice for lack of a final order

On September 8, 2006, the respondent Safety National moved for summary judgment under Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. On October 4, 2006, the ALJ entered an order granting the motion for summary judgment. The ALJ, in ruling on the motion made the following pertinent findings of fact. The claimant suffered an admitted injury to his low back on December 1, 1997. The City of Fort Collins is a self-insured employer under the terms of § 8-44-101(1)(c) and § 8-44-201, C.R.S. 2006. Safety National is an insurance company which entered into a specific excess insurance contract with the City of Fort Collins. Under the insurance contract, Safety National is responsible for making payments to the City of Fort Collins to reimburse it for payments made on the claimant’s workers’ compensation claim in excess of the self-insured retention of $300,000. Safety National is not responsible for making payments in any amount to the claimant. Under the Workers’ Compensation Act and the excess insurance policy, the City of Fort Collins

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bears the entire risk of liability for payment of benefits to the Claimant. The City of Fort Collins is responsible for retaining case managers under its service contract as to which it is solely responsible for claims management, without reimbursement from the excess carrier as a loss covered by the excess insurance policy. The clamant had not alleged and no evidence indicated that Safety National delegated authority to respondent CCMSI, the third party claims administrator, to act on behalf of Safety National as its agent in conducting business. There is no statutory duty under the Workers’ Compensation Act for Safety National except what may arise out of its role as an excess insurer for the City of Fort Collins, the self-insured employer.

The ALJ concluded that Safety National was not a proper respondent under the Workers’ Compensation Act because it was not an employer, a workers’ compensation insurer, a self-insurer, a benefits provider, or a third party claims administrator responsible for adjusting the claim. The ALJ further concluded that Safety National did not have a contractual relationship with the clamant under terms that would make it responsible to pay the claimant benefits. Therefore, the ALJ granted summary judgment to Safety National and dismissed them as a party. The claimant filed a petition to review this October 4, 2006 order.

The record reveals that the claimant filed a response to the motion for summary judgment with a certificate of mailing dated September 29, 2006. The response was dated stamped as received by the Division of Workers’ Compensation Dispute resolution section on October 5, 2006, one day after the October 4, 2006 summary judgment order had been issued. In the response, the claimant contended that he could not present all facts essential to contest the motion for summary judgment and attached an affidavit of counsel for the claimant stating that the claimant needed responses to discovery requests. As part of the response, the claimant also requested an extension of time to respond to the motion for summary judgment. The ALJ entered an order dated October 11, 2006, denying the claimant’s motion for extension of time. The ALJ found that the motion was filed by mail, with a date of service of September 29, 2006, which was untimely because OACRP 17 required any objection or responsive pleading to be served within 20 days, which in this case would have been September 28, 2006.

The claimant filed a combined petition to review the October 4, 2006 order granting summary judgment, and the October 11, 2006 order, which denied his motion for extension of time. Safety National filed a motion to strike the claimant’s combined petition to review, contending that the claimant did not timely object to the motion for summary judgment, the ALJ’s order granting summary judgment was correctly issued, and the claimant’s appeal was not within our jurisdiction because it was interlocutory. In an order dated November 21, 2006, the ALJ granted Safety National’s motion to strike the combined petition to review. Citing OACRP 16(E), 1 Code Colo. Reg. 104-3 at 7, which requires that a response to a motion be filed within 10 days, the ALJ found that the

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claimant had failed to timely respond to the motion and had thereby confessed the motion.

The claimant filed a petition to review the ALJ’s order of November 21, 2006, contending, inter alia, that his failure to file a timely response to a motion requesting substantive relief does not constitute a waiver of the right to an appropriate resolution of the substantive issues. Safety National again filed a motion to strike the claimant’s petition to review, contending there is a lack of jurisdiction to grant the claimant relief under § 8-43-301(14). Safety National further argued that the claimant’s petition to review is an impermissible attempt to bootstrap his prior untimely arguments and revive his interlocutory appeal of the October 4, 2006 order granting summary judgment. The ALJ entered an order dated December 28, 2006, deferring ruling on Safety National’s motion to strike the claimant’s petition to review and referred the motion and file to this office for a decision.

In our view, the ALJ’s order of November 21, 2006 is not presently final and reviewable. Section 8-43-301(2), C.R.S. 2006, provides that any dissatisfied party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute, the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). However, 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., 805 P.2d 1193 (Colo.App. 1991).

None of the orders in the record before us, including the order of November 21, 2006, required a party to pay a benefit or penalty nor did any of the orders deny the claimant a benefit or penalty. In essence, the ALJ’s orders taken together only dismiss Safety National as a party. The matter was set for hearing on the application of Safety National to be dismissed as a party. In the record before us, no claim has been brought against Safety National, much less any order requiring them to pay a benefit or penalty, or denying the claimant a benefit or penalty. Therefore, the order of November 21, 2006 which allows Safety National to be dismissed as a party is not final and not properly before us at this time.

IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated November 21, 2006 is dismissed without prejudice.

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INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ Dona Halsey
___________________________________ Thomas Schrant

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Tomas M. Gonzales, 710 Sherry Drive, Fort Collins, CO 80524

City of Fort Collins, Greg Tempel, P.O. Box 580, Fort Collins, CO 80522

Occupational Healthcare Management Services, CCMSI, Vicky Roden, P.O. Box 280269, Denver, CO 80228-0269

Safety National Casualty Corp., Brad Goodman, 2043 Woodland Pkwy, Suite 200, St. Louis, MO 63146

Irwin Boesen, P.C., Chris L. Ingold, Esq., 501 South Cherry Street, #500, Denver, CO 80246 (For Claimant)

Wick, Bramer Trautwein, LLC, Kent N. Campbell, Esq., P.O. Box 2166, Fort Collins, CO 80522 (For Respondents)

McElroy, Deutsch, Mulvaney Carpenter, LLP, C. Adam Foster, Esq., 1700 Broadway Ave., Suite 1900, Denver, CO 80290-1901 (For Respondents)

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