W.C. No. 2002-80312.Industrial Claim Appeals Office.
January 9, 2004.
ORDER
Shreiner Sons Logging (employer) seeks review of an order of Administrative Law Judge Felter (ALJ) assessing a fine for failure to insure its liability for workers’ compensation benefits. We dismiss the petition to review without prejudice.
The Division of Workers’ Compensation (DOWC) filed an application for hearing seeking the imposition of fine on the employer pursuant to §8-43-409(1)(b)(I), C.R.S. 2003. The DOWC alleged the employer failed to maintain workers’ compensation insurance as required by the statute. Subsequently, the DOWC filed a Motion for Summary Judgment seeking the imposition of a fine in the amount of $33,017, the estimated annual premium for a policy to cover the employer’s liability.
By order dated September 15, 2003, the ALJ granted the motion for summary judgement and imposed a fine of $33,017. The employer filed a timely petition to review stating that it had been advised by an Assistant Attorney General (AAG) that the no fine would be imposed if it produced a certificate of insurance demonstrating that a policy was in force. The petition further stated that the employer produced a certificate of insurance on September 18, 2003. The employer filed no brief in support of its petition.
On November 13, 2003, an AAG representing the DOWC filed a brief in opposition to the employer’s petition to review. In the brief the AAG states that on September 19, 2003, the DOWC received from the employer proof of insurance which is effective from September 19, 2003, to October 24, 2004. Consequently, the AAG represents that he advised the employer that the DOWC has suspended the fine pursuant to § 8-43-409(1)(b)(III), C.R.S. 2003. The DOWC therefore requests dismissal of the petition to review.
Section 8-43-301(2), C.R.S. 2003, 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, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003). In order to be reviewable, the order must finally dispose of the issue presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). Orders which leave open the possibility for future litigation are not final and reviewable. M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998).
Section 8-43-409(1)(b)(III) provides as follows:
The director shall suspend any fine imposed pursuant to this paragraph (b) if the employer provides proof suitable to the director that the employer has in force insurance for so long as the employer has any obligation under articles 40 to 47 of this title, and is not otherwise in violation of articles 40 to 47.
Here, the AAG represents on behalf of the DOWC that the fine imposed by the ALJ has been “suspended” by operation of subsection (b)(III). Thus, although the ALJ’s order may have been final when entered, the operation of the statute has vitiated the finality of the ALJ’s order because the employer is not currently obligated to pay any fine. Moreover, lifting the suspension would require further litigation because such action would require a determination that the employer failed to maintain the required insurance or “otherwise” violated the Act.
Under these circumstances, the employer’s petition to review must be dismissed without prejudice for lack of a final order. However, the ALJ’s order would become reviewable if, after the appropriate proceedings, an order was entered lifting the suspension and reimposing the fine. See American Express v. Industrial Claim Appeals Office, 712 P.2d 1132
(Colo.App. 1985) (interlocutory order may be reviewed incident to review of a subsequent final order).
IT IS THEREFORE ORDERED that the employer’s petition to review the ALJ’s order dated September 15, 2003, 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 the 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 Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202, 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. 2003.
Copies of this order were mailed to the parties at the addresses shownbelow on January 9, 2004 by A. Hurtado.
Steven Shreiner, Shreiner Sons Logging, P. O. Box 893, LaPorte, CO 80535
Coverage Enforcement Unit, Tower 2, #620, Division of Workers’ Compensation — Interagency Mail
Eric Rothaus, Esq., State Services Section, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Division)