W.C. No. 4-598-140.Industrial Claim Appeals Office.
September 16, 2005.
ORDER
The respondents, Kevin Drake d/b/a Eastern Slope Framing (Eastern Slope), Pinnacol Assurance (Pinnacol) and Lennar Homes/U.S. Home (U.S. Home) and its insurer, Old Republic Insurance separately seek review of an order of Administrative Law Judge Klein (ALJ) that determined that the claimant sustained a compensable injury and awarded medical and temporary disability benefits. We dismiss the petitions to review without prejudice.
The ALJ found that the claimant was employed by Brothers Construction, which had been retained by Eastern Slope to complete framing work at a residential site. The claimant was injured when he fell while stacking plywood on the second story of a home under construction. The ALJ found that Eastern Slope was, in turn, a subcontractor of U.S. Home. The ALJ concluded that the claimant sustained a compensable injury, that Eastern Slope was a statutory employer, and that “should it be shown at a future hearing [Eastern Slope] was uninsured on the date of injury, [U.S. Home] would then be the statutory employer of Claimant.”
The ALJ then determined the claimant is entitled to benefits under the Workers’ Compensation Act, that Eastern Slope and “if uninsured” U.S. Home are statutory employers, that the claimant is entitled to medical and temporary disability benefits. However, the ALJ did not order that medical and temporary disability benefits be paid by any specific employer or insurer. Under these circumstances the claimant argues the ALJ’s order is not presently final and reviewable.
The respondents separately argue that the ALJ’s order is final and reviewable, notwithstanding that it leaves open the issue of which party is liable to pay those benefits. We reject the respondents’ argument.
The respondents correctly note that § 8-43-301(2), C.R.S. 2005 states 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). However, under this statute a reviewable order must be one that finally disposes of the issues presented. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
Here, by leaving open for future determination the identity of the liable party, the ALJ’s order does not finally dispose of the temporary disability benefits issue. Indeed, the record is clear that the parties contemplated that certain issues regarding the liable parties would be deferred. Prior to the hearing on May 18, 2004, a prehearing order was entered stating that the only issue to be heard on May 18th was that of compensability, and that remaining issues, including coverage and statutory employment issues, would be heard “at a rescheduled hearing.” At the May 18th hearing counsel for Pinnacol stated that discovery on the question of coverage was not completed and that that issue would be “reset at the next hearing. . . .” Tr. (May 18, 2004) p. 7. Counsel for Eastern Slope added that coverage was not the only issue deferred, but also various issues “on the business relation between various parties, characterizations that go to the statutory employer, actual issues of who employed who. . . .” Tr. (May 18, 2004) p. 7. At the commencement of a subsequent hearing the parties again agreed that the issue of coverage was “bifurcated and only being tried, if necessary, following the entry of an order on the remaining issues by the Court.” Tr. (June 30, 2004) p. 4. All counsel assented to that statement.
Further, because jurisdiction may not be conferred by waiver, estoppel, or consent, the parties’ understanding of the interlocutory or final nature of the order is not dispositive. Hasbrouk v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). Here, the parties appeared to recognize the interlocutory nature of various possible orders in this matter. The claimant’s attorney raised a question concerning whether a final order were likely to be entered, and counsel for Eastern Slope stated that two possible outcomes would lead to final orders that were appealable. However, he continued that “[i]f the Court should find that the responsible party would either be [Eastern Slope] or [U.S. Home] then we have an interlocutory order, that as much as we may like to appeal it at that point in time, I don’t believe we would be able to. . . .” Tr. (February 28, 2005) p. 13. The ALJ then stated his agreement with the attorney’s opinion concerning the interlocutory nature of the possible order.
Because the party liable for the temporary disability and medical benefits awarded by the ALJ was not set forth in the order, it does not finally dispose of the issue presented. The order is therefore not presently final and reviewable.
IT IS THEREFORE ORDERED that the petitions to review the ALJ’s order dated April 14, 2005, are dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Curt Kriksciun
Daniel Silva Calva, Montbello, CO, Lennar Homes/U.S. Homes, CO, Kevin Drake d/b/a Eastern Slope Framing, Englewood, CO, Francisco Ausencio d/b/a Brothers Construction, Littleton, CO, Old Republic Insurance, Greensburg, PA, Legal Department, Pinnacol Assurance — Interagency Mail Miguel Martinez, Esq., Denver, CO, (For Claimant).
James R. Clifton, Esq., Grand Junction, CO, (For Respondents Lennar Homes/U.S. Homes and Old Republic Insurance).
Lawrence D. Blackman, Esq. and Lynda S. Newbold, Esq., Denver, CO (For Respondent Kevin Drake d/b/a Eastern Slope Framing).
Dawn Yager, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondent Pinnacol Assurance).