W.C. No. 4-478-614.Industrial Claim Appeals Office.
June 19, 2003.
ORDER
The claimant seeks review of orders of Administrative Law Judge Muramoto (ALJ) dated January 16, 2003. We dismiss the appeal for lack of a final order.
The claimant suffered an admitted industrial injury on April 17, 2000. The claimant’s authorized treating physician placed the claimant at maximum medical improvement (MMI) on June 26, 2001, with a permanent medical impairment rating of 16% of the cervical spine, and 1% of the upper extremity. The respondent disagreed with this rating, and requested a Division of Workers’ Compensation Independent Medical Examination (DIME). The DIME physician concurred with date of MMI date of June 26, 2001, but determined that there was no permanent medical impairment.
The respondent filed a Final Admission of Liability (FAL) on November 30, 2001, based on the determinations of the DIME physician, and denied liability for permanent partial disability benefits and medical benefits after MMI. The FAL also stated that because there was no “lost time,” there was no liability for temporary total disability (TTD) benefits.
The ALJ found that on December 21, 2001, the claimant’s attorney at the time timely objected to the FAL, and filed an Application for Hearing. The Application for Hearing endorsed as issues for the hearing permanent partial disability benefits and overcoming the DIME. The Application for Hearing also provided notice that the claimant would set a hearing on January 8, 2002. However, the setting scheduled for January 8 never took place, and the attorney’s motion to withdraw as counsel of record was subsequently granted. The claimant’s current counsel filed another Application for Hearing on August 22, 2002, and the respondent filed a Motion to Dismiss Claim on September 13, 2002. A Prehearing ALJ issued an order on October 1, 2002, construing the respondent’s Motion to Dismiss Claim as a motion to strike the claimant’s hearing application on the issues of PPD, and overcoming the DIME.
In her January 16, 2003 order, the ALJ found that the claimant did not intend to waive her right to seek additional benefits beyond those admitted by the respondent, and did not unconscionably delay in enforcing her rights. The ALJ also found that the claimant satisfied the requirements of § 8-43-203(2)(b)(II), C.R.S. 2002 by timely contesting the FAL in writing, and requesting a hearing on disputed issues. Further, the ALJ found that the claimant’s former attorney’s failure to set a hearing on disputed issues was procedural, and did not affect the claimant’s substantive right to maintain jurisdiction and seek PPD benefits. Accordingly, the ALJ found that the issues endorsed on the claimant’s December 21, 2001 Application for Hearing are ripe for adjudication, and ordered that the claimant file an Application for Hearing on these issues within 20 days.
On review, the respondent contends the ALJ erred in determining that the issues endorsed on the claimant’s December 21, 2001 Application for Hearing are ripe for adjudication, and that the issues are closed by operation of law. We conclude that the ALJ’s order is not final, and therefore not subject to our review.
Section 8-43-301(2), C.R.S. 2002 provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or do not deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Procedural rulings, including those governing the presentation of evidence, are not final and reviewable because they do not award or deny benefits or penalties. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
The January 16 order does not grant or deny the claimant any benefit or penalty. Rather, the order merely determined that the issues listed in the claimant’s December 21, 2001 Application for Hearing were ripe for adjudication. We therefore conclude that the ALJ’s January 16 order, is interlocutory, and not subject to our review at this time.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated January 16, 2003, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 19, 2003 to the following parties:
Maria del Carmen Ramirez, 1020 37th St., Evans, CO 80620
ConAgra Beef Company, P. O. Box G, Greeley, CO 80631
Carol VonEschen, Sedgwick CMS, P. O. Box 540010, Omaha, NE 68154
Britton Morrell, Esq., 1305 8th St., Greeley, CO 80631 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
BY: A. Hurtado