IN THE MATTER OF THE CLAIM OF JEFF ADKINS, Claimant, v. SAFEWAY STORES, INC., Employer, and SELF INSURED, Insurer, Respondent.

W.C. No. 4-711-177.Industrial Claim Appeals Office.
April 9, 2008.

ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) dated September 6, 2007, that determined that the claimant was subject to penalties for failing to report his injury pursuant to § 8-43-102 (1)(a) C.R.S. 2007, and ordered that temporary disability benefits otherwise due would be offset by an equal amount of penalties. We dismiss the petition to review without prejudice.

The respondent contends that the ALJ erred as a matter of law in determining that penalties imposed on the claimant for failure to report his injury pursuant to § 8-43-102(1)(a) can only apply to any temporary disability benefits. The respondent seeks review of the ALJ’s order insofar as the order limited the assessment of a penalty for the claimant’s late reporting. The claimant sought benefits for an injury which occurred on September 3, 2001, and the matter proceeded to hearing. At the hearing, the issues before the ALJ were compensability, medical benefits, statute of limitations and the respondent’s request for a late-reporting penalty under § 8-43-102(1)(a). The parties did not request the ALJ to decide the issue of temporary disability benefits. Findings of Fact, Conclusions of Law, and Order at 13, ¶ 4.

The ALJ found that the claimant sustained a compensable injury and awarded medical benefits. The ALJ also determined that the claimant did not make a written timely report of injury as required by §8-43-102(1)(a) until he filed his worker’s claim for compensation on December 22, 2006. Under such circumstances, the ALJ ordered that the claimant was to receive no temporary disability benefits from September 3, 2001 through December 22, 2006, because any temporary disability benefits due during that time shall be offset by an equal amount of penalties.

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On review, the respondent does not contest the ALJ’s determination of compensability or the award of medical benefits. We do not understand the respondent as contending that the late-reporting penalty should apply against the award of medical benefits. The respondent notes that for the purposes of § 8-43-102(2) the term “compensation” means disability benefits.

Rather, the respondent’s only argument is that the ALJ erred in limiting the penalty to claims for temporary disability benefits rather than applying it against disability benefits including permanent disability benefits. We conclude that this portion of the order is not final and reviewable.

Section 8-43-301(2), C.R.S. 2007, provides that a party dissatisfied with an order “may file a petition to review” if the order “requires any party to pay a penalty or benefits or denies a claimant any benefits or penalty.” The courts have repeatedly held that orders which do not meet the statutory criteria are interlocutory and not subject to review United States Fidelity Guaranty, Inc. v. Kourlis, 868 P.2d 1158
(Colo.App. 1994); Natkin and Co. v. Eubank, 775 P.2d 88 (Colo.App. 1989) Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Further, certain orders may be partially final and reviewable, and partially interlocutory. See Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).

Here, the contested portion of the order does not require the payment of a penalty or benefit, nor does it deny the “claimant” any benefit or penalty. To the contrary, the order does not determine that the claimant is, or ever will be, liable to pay a penalty. This is true because there has been no determination of the claimant’s entitlement to any compensation beyond medical benefits. Consequently, it is impossible to determine whether the ALJ’s order will have the practical effect of denying the respondent any “penalty” at all. See Capalety v. The Humane Society of the Pikes Peak Region, W. C. No. 4-232-993 (June 29, 1995).

The respondent cites Bowers v. Excel Corporation, W. C. No. 4-216-076 (December 21, 1995) for the proposition that it has previously been argued that limiting the remedy of penalties under § 8-43-102(1)(a) to claims for temporary disability benefits rather then applying it to all forms of compensation was impermissible. In Bowers the panel dismissed the petition to review without prejudice for lack of a final order because, like here, there had been no determination of the claimant’s entitlement to any compensation beyond medical benefits.

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Under these circumstances, we conclude that the ALJ’s order, insofar as it concerns the penalty for late reporting, is not final and appealable. 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 dated September 6, 2007 is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

_____________________________ John D. Baird
_____________________________ Thomas Schrant

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JEFF ADKINS, 11086 RODEO CIRCLE, PARKER, CO, 80138 (Claimant)

SAFEWAY STORES, INC., Attn: DEBBIE DUNST, ENGLEWOOD, CO, (Employer)

LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL O’TOOLE, ESQ., DENVER, CO, (For Claimant)

THOMAS, POLLART MILLER LLC, Attn: DOUGLAS THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents)

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