W.C. No. 4-589-950.Industrial Claim Appeals Office.
July 17, 2007.
ORDER DISMISSING PETITION TO REVIEW
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated February 28, 2007, that determined that the respondents are not entitled to a hearing designed to allocate the settlement proceeds paid by a third-party tortfeasor (a “Jorgensen hearing”). We dismiss the petition to review without prejudice.
The ALJ’s pertinent findings of fact are as follows. The claimant was injured in a motor vehicle accident on May 29, 2001. A civil tort lawsuit was filed in the district court of El Paso County and was subsequently settled for $25,000. A workers’ compensation claim was filed which was eventually found to be compensable. The aggregate amount of the benefits due the claimant (before application of offsets, credits or the statutory cap on benefits) was $135,234.16. The claimant’s authorized treating physician placed the claimant at maximum medical improvement and gave her an impairment rating of 23 percent whole person. Under § 8-42-107.5 C.R.S. 2001 the claimant was limited to sixty thousand dollars from combined temporary disability payments and permanent partial disability payments. The respondents took a $16,666 offset against the $60,000 statutory cap on benefits, asserting that they are entitled to offset the entire proceeds of the claimant’s personal injury settlement, less attorneys’ fees of one-third of the gross settlement. The respondents issued the claimant a check for $43,334.
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The ALJ found that the respondents could only impose the statutory cap as a last step after first computing the benefits owed the claimant and then applying any offsets or credits to arrive at an amount due. Thus even if the entire tort settlement of $25,000 was credited against the aggregate amount of $135,234.16 the amount of $110,234.16 would be due the claimant and the respondents after imposition of the statutory cap would owe the claimant $60,000 and not the $43,334 they admitted for. The ALJ determined that, “As a practical matter in this case, a Jorgensen hearing does not need to be held, because even if the entire tort settlement were subtracted from the total benefits owed, the aggregate benefits would still be above the $60,000.” Findings of Fact, Conclusions of Law, and Order at 8, ¶ d. It appears from the claimant’s brief in opposition to the petition to review that at this point the respondents have paid the additional $16,666 and interest and thus have complied with the ALJ’s order. At any rate, the only relief requested by the respondents on appeal is that a “determination be made that ALJ Felter erred in concluding that Respondents are not entitled to a Jorgensen Hearing.”
In Colorado Compensation Insurance Authority v. Jorgensen, 992 P.2d 1156
(Colo. 2000) the court addressed an insurer’s subrogation rights under § 8-41-203, C.R.S. 2001, of the Workers’ Compensation Act. Unde Jorgensen, when an insurer has a right of subrogation with respect to some portion of a settlement recovered from a tortfeasor by an injured worker, the insurer may ask the court to review the settlement and apportion economic and noneconomic damages for purposes of the insurer’s subrogation rights to the settlement proceeds. Jorgensen, 992 P.2d at 1166. However, as we read Jorgensen, the court also held that jurisdiction to review and apportion settlement proceeds lies solely with the district court that has jurisdiction over the tort claim Jorgensen, 992 P.2d at 1160; See also § 8-41-203 (providing that a workers’ compensation insurer is subrogated to the injured claimant’s rights to recover damages against a tortfeasor).
Section 8-43-301(2), C.R.S. 2006, provides that a 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.” Orders which do not meet one of these criteria are interlocutory and not subject to immediate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110
(Colo.App. 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). In our view the ALJ’s statement that a Jorgensen hearing does not need to be held does not, at least at the present time, require the respondents to pay any penalty or benefit.
The contested portion of the ALJ’s order does not require the respondents to pay a benefit or penalty. Therefore, the disputed portion of the ALJ’s order is interlocutory and not currently subject to review. Moreover, as noted, the forum with jurisdiction over the
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tort claim is the one with jurisdiction to conduct proceedings to apportion the settlement amounts. Thus, since the district court has jurisdiction to apportion the settlement proceeds, we do not read the respondents’ brief as requesting that we remand the matter to the ALJ with instructions to conduct a “Jorgensen hearing.” Thus, the portion of the ALJ’s order complained of by the respondents lacks the necessary finality. Consequently, we must dismiss the petition to review without prejudice.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated February 28, 2007, is dismissed without prejudice
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Curt Kriksciun
____________________________________
Thomas Schrant
Joann Butler, P. O. Box 356, Green Mountain Falls, CO, Renee C. Ozer, Colorado Springs, CO, (For Claimant).
Gregory K. Chambers, Denver CO, (For Respondents).
Jennifer Green, Gallagher Bassett Services, Inc., Englewood, CO.
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