W.C. No. 4-203-686Industrial Claim Appeals Office.
July 21, 1995
ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which denied their petition to reopen. We dismiss the petition to review without prejudice.
A brief review of the procedural history of this case is necessary. On September 15, 1994, the ALJ entered an order determining that the claimant suffers from a compensable condition, and that Dr. Dibella is the authorized treating physician. The respondents appealed this order, asserting that the ALJ’s findings were not supported by the evidence, and that the ALJ should hear additional evidence concerning the cause of the claimant’s condition.
On April 27, 1995, we dismissed the respondents’ petition to review the September 15 order on the grounds that it was not final and appealable under § 8-43-301(2), C.R.S. (1994 Cum. Supp.). Specifically, we held that the order did not deny the claimant any benefits, nor did it require the respondents to pay any benefits.
The respondents appealed our order to the Court of Appeals. However, on June 15, 1995, the Court of Appeals dismissed the appeal, apparently for lack of a final order. The court issued its mandate on July 13, 1995.
Prior to the issuance of our April 27 order, the respondents filed a “petition to reopen” the ALJ’s September 15 order based on an alleged mistake of fact. The respondents contended that the ALJ made an incorrect finding concerning the claimant’s diagnosis, and offered the medical report of Dr. Gray in support of this position.
On March 8, 1995, the ALJ denied the petition to reopen. The ALJ stated that his September 15 order considered and resolved conflicting evidence concerning the claimant’s diagnosis. Further, the ALJ found that Dr. Gray’s evidence could have been presented at the prior hearing, but was not. The respondents now seek review of the March 8 order.
Initially, we note that a “petition to reopen” was not necessary in this case. As we previously determined, the ALJ’s September 15 order is not final because it does not award or deny any specific benefits. Thus, the claim is not closed, and the issue of the claimant’s entitlement to medical and other benefits remains before the ALJ. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780, (Colo.App. 1991). Because the claim is not closed, the ALJ retains the power, under §8-43-207(1)(j), C.R.S. (1994 Cum. Supp.), to grant the respondents’ request for the taking of additional evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Viewed in this light, the ALJ’s denial of the respondents’ “petition to reopen” is not a final order under § 8-43-301(2). The ALJ’s refusal to take additional evidence does not deny the claimant any benefits, nor does it require the respondents to pay any benefits. Since the September 15 order is not final and reviewable, the refusal to take additional evidence concerning that order is not final and reviewable. Rather, the ALJ’s refusal to take additional evidence may be appealed incident to any final order which may ultimately be issued. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated March 8, 1995, 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 theColorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, byfiling a petition to review with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed July 21, 1995 to the following parties:
Charles Churchill, 16330 E. Bails Pl., Aurora, CO 80017
Goodyear Tire Rubber Co., % Lawrence D. Blackman, Esq. Jordan S. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203
Travelers Insurance Co., Attn: Carol H. Price, P.O. Box 17360, Denver, CO 80217-5980
Lawrence D. Blackman, Esq. Jordan S. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
Janet L. Frickey, Esq., 940 Wadsworth Blvd., #400, Lakewood, CO 80215 (For the Claimant)
By: __________________________