IN THE MATTER OF THE CLAIM OF FLORA M. AARON, Claimant, v. EGG G INC., and/or KAISER HILL COMPANY LLC, Employers, and LIBERTY MUTUAL INSURANCE COMPANY and/or NATIONAL UNION FIRE INSURANCE COMPANY and/or SUBSEQUENT INJURY FUND, Insurers, Respondents.

W.C. Nos. 4-468-193 4-162-124.Industrial Claim Appeals Office.
October 16, 2003.

ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed her claim against Kaiser Hill Company LLC (Kaiser) and its insurer, the National Union Fire Insurance Company (collectively the Kaiser respondents). We dismiss the appeal without prejudice.

The claimant was employed at Rocky Flats from approximately 1983 through 1997. Between 1995 and 1997 Rocky Flats was operated by Kaiser. The claimant suffered admitted knee injuries in 1983. In 2000 the claimant filed a new claim which alleged that her prior knee injuries were substantially aggravated during her employment with Kaiser. The Kaiser respondents denied liability and applied for a hearing on the issue of compensability.

The fully contested 2000 claim was heard by the ALJ on December 6 and 19, 2002. The claimant presented no evidence in support of the 2000 claim and fully expected the ALJ to summarily deny the claim. However, no party moved for a directed verdict and, the ALJ overruled the claimant’s objection the Kaiser respondents presentation of evidence. Their evidence included the testimony of Dr. Shih.

Crediting Dr. Shih’s testimony the ALJ found there was no substantial or permanent aggravation of the claimant’s knee during her employment for Kaiser. (Finding of Fact 11). The ALJ also credited Dr. Shih’s opinion that the claimant’s weight gain and activities of daily living had caused a significant amount of degeneration in the claimant’s right knee over the years. (Finding of Fact 10). Therefore, the ALJ dismissed the workers’ compensation claim against the Kaiser respondents.

On review, the claimant does not contest the ALJ’s order dismissing the claim against the Kaiser respondents. Rather, the claimant merely contests the ALJ’s Findings of Fact 10 and 11. The claimant contends these findings should be stricken because it was err to allow Dr. Shih to testify, where as here, the claimant did not sustain her burden to establish a prima facie case that her knee condition was causally related to her employment with Kaiser. The claimant argues that under circumstances, the burden of proof never shifted to the Kaiser respondents and the ALJ was required to dismiss the claim without allowing the presentation of rebuttal evidence. We conclude that the contested portion of the ALJ’s order is interlocutory and not currently subject to review.

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 a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). Furthermore, an order may be partially final and reviewable, and partially interlocutory. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).

As stated above, the claimant does not contest the ALJ’s order. Rather, the claimant appears to contest Findings of Fact 10 and 11 only insofar as these may affect a future proceeding on her claim for additional benefits from the remaining respondents. However, because there has been no determination of whether the claimant is entitled to additional benefits against the remaining respondents, the contested findings do not award or deny any benefits at this time. Rather, in the context of the claimant’s argument, the contested findings are interlocutory.

Indeed, the claimant essentially requests that we strike the contested findings to avoid any party from raising a collateral estoppel argument concerning the findings. The claimant’s request is premature because no collateral estoppel argument has been raised and no ALJ has determined whether the doctrine of collateral estoppel is applicable. See In the Matter of Rauer, VR98-1 (June 8, 1999), aff’d., Mullens v. Industrial Claims Appeals Office (Colo.App. No. 99CA1269, March 23, 2000) (not selected for publication) (order concerning potential vocational evaluations in future cases not reviewable). Therefore, we lack authority to grant the claimant’s request and the claimant’s petition to review must be dismissed for lack of a final order Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); cf. Provo v. Industrial Claim Appeals Office, 66 P.3d 138
(Colo.App. 2002); Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).

IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated January 21, 2003, is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ 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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed October 16, 2003 to the following parties:

Flora M. Aaron, 1508 Centennial Dr., Longmont, CO 80501

EG G, Inc., 10808 Hwy 93, Unit B-Bldg. T130G Golden, CO 80403

Albert Jerman, #53, Kaiser Hill Company, L.L.C., 10808 Hwy 93, Unit B, T130G, Golden CO 80403-8200

Juni Wolfe, Liberty Mutual Insurance Company, P.O. Box 168208, Irving, TX 75016

National Union Fire Insurance Co., c/o Tina Gustafson, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064

Subsequent Injury Fund, Tower 2, #500, Division of Workers’ Compensation — Interagency Mail Michael A. Patrick, Esq., P.O. Box 510, Berthoud, CO 80513 (For Claimant)

W. Berkeley Mann, Jr., Esq., P.O. Box 22833, Denver, CO 80222 (For Respondents Kaiser Hill Co. and National Union Fire Insurance Co.)

Jonathan Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents EG G, Inc. and Liberty Mutual Insurance Company)

Jill M. M. Gallet, Esq., 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)

BY: A. Hurtado