W.C. No. 4-310-722Industrial Claim Appeals Office.
September 17, 1997
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Harr (PALJ), which granted a motion to strike an issue for hearing. We dismiss the petition to review without prejudice.
In September 1996, the claimant filed a claim for benefits alleging that he had sustained an injury on December 4, 1992. The respondents filed a notice of contest stating that the claim is a “duplicate” of a prior claim for a May 1992 injury.
In January 1997, the claimant filed an application for hearing listing the issues as compensability and “failure to admit/deny” liability. A response was filed adding the issues of a penalty against the claimant for failure timely to report the injury, and statute of limitations. The hearing was scheduled for May 7, 1997.
In March 1997, the respondents filed a “Motion to Strike Issue of Penalties for Hearing.” The motion alleged that the December 1992 injury was not a “new injury,” but was a continuation of the May 1992 injury. In any event, the respondents asserted that they substantially complied with the requirement to admit or deny liability by filing an admission of liability in the May 1992 case. Therefore, the respondents requested that the issue of penalty for failure timely to admit or deny liability be stricken as an issue for consideration at the May 1997 hearing.
In an order dated April 3, 1997, the PALJ granted the respondents’ motion stating that the issue of penalty for failure to “admit/deny is stricken as an issue for the hearing scheduled on May 7, 1997.” The claimant seeks review of that order.
We agree with the respondents that we currently lack jurisdiction to review the order of the PALJ. Section 8-43-207.5(2), C.R.S. 1997, permits PALJs to enter “interlocutory orders.” Section 8-43-207.5(3), C.R.S. 1997, goes on to state that orders of PALJs “shall be interlocutory.” We do not have jurisdiction to review interlocutory orders, including those issued by PALJs. Orth v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 97CA0297, July 10, 1997); Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); § 8-43-301(2), C.R.S. 1997.
Here, the PALJ’s order does not finally deny the claimant the right to a penalty. The PALJ merely determined that the issue should not be considered at the May 7 hearing. Moreover, insofar as the PALJ’s ruling may have been erroneous, the claimant is free to take that issue up with an ALJ in the Division of Administrative Hearings. Orth v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the claimant’s petition to review the PALJ’s order dated April 3, 1997, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
An action to modify or vacate the Order may be commenced inthe Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court,with service of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty (20) daysafter the date the Order was mailed, pursuant to §§ 8-43-301(10)and 307, C. R. S. 1997.
Copies of this decision were mailed September 17, 1997 to the following parties:
Crescencio Conde, 6020 Rose Lane, Commerce City, CO 80022
Fawn Anderson, Integrated Food Service, Inc. d/b/a Colorado Pride Foods, P.O. Box 16083, Denver, CO 80216
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Victor C. Devereaux, Esq., 400 Vega St., P.O. Box 40, San Luis, CO 81152 (For the Claimant)
By: _______________________________