W.C. No. 4-406-492.Industrial Claim Appeals Office.
July 1, 2005.
ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated December 21, 2004, which vacated the hearing scheduled for December 16, 2004, on their Application for Hearing. We dismiss the appeal for lack of a final order.
The claimant suffered a compensable low back injury in 1998. The record reveals claim was closed in 1999 but reopened in January 2000 upon a showing of a worsened condition. Thereafter, in an order dated August 13, 2002, the ALJ rejected the respondents’ contention that the causal connection between the original injury and the claimant’s worsened condition was severed by an intervening injury in December 2001. However, the claimant was found to be at maximum medical improvement from the worsened condition on December 19, 2001. No appeal was taken from the August 13 order and the claim was again closed.
In January 2004 the claimant alleged another worsening of condition. Following a hearing on May 25, 2004, the ALJ issued an order dated August 10, 2004, where he found the claimant proved a worsening of her condition from the 1998 industrial injury effective October 2, 2002. Therefore, the ALJ granted the petition to reopen and awarded additional medical and temporary disability benefits.
The respondents appealed the August 10 order and argued it was reversible error for the ALJ to adjudicate the petition to reopen without allowing the respondents to present the “new” evidence concerning whether the claimant suffered an efficient, intervening injury in December 2001.
On March 28, 2005, we affirmed the August 10 order. The respondents appealed our order and that appeal is currently pending at the court.
In the interim, the respondents filed an Application for Hearing on “whether claimant’s medical condition attributed to her initial work injury is causally related.” A hearing was scheduled for December 16. During the course of the hearing the ALJ determined the respondents sought to present evidence “that claimant’s medical condition was not attributable to her industrial injury,” or in other words “causation” of the claimant’s worsened condition after December 2001. (Finding of Fact 5). Because the causation issue was litigated on May 25 and resolved by the order dated August 10 which is currently pending the ALJ determined it was not appropriate to relitigate the issue on December 16. Therefore, in the order on review the ALJ struck the respondents’ Application for Hearing and vacated the December 16 hearing.
The respondents contend the December 21 order constitutes an abuse of discretion which denied them a fair opportunity to present evidence on the issue. We conclude the order is interlocutory and thus, not currently subject to appellate review.
Section 8-43-301(2), C.R.S. 2004, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). It follows that an order which strikes an application for hearing is not an appealable order because such an order does not award or deny a penalty or benefit. American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985).
Here, the ALJ determined that because the August 10 order resolved the causation issue against the respondents and review of that order was pending before the Court of Appeals, it was inappropriate to relitigate the question of whether the claim proved a causal connection between her worsened condition and the original industrial injury at a hearing on December 16, 2004. However, the ALJ’s order does not require the respondents to pay any benefits or penalties not already awarded by the August 10 order. Similarly, the ALJ’s order denying the respondents’ request to add review of the November 11, 2004 prehearing order that required the respondents to provide discovery is interlocutory. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533
(Colo.App. 1997) (interlocutory order becomes reviewable when appealed incident to or in conjunction with an otherwise final order). Under these circumstances, we lack jurisdiction to review the December 21 order at this time. See United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated December 21, 2004, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Debbie Eachus, Grand Junction, CO, Debbie Eachus, Meeker, CO, Melissa Ferrell, Pioneers Hospital, Meeker, CO, Colorado Hospital Association Trust, c/o Mary Ann Donelson, Support Services, Inc., Greenwood Village, CO, Amy K. Eaton-Fitzpatrick, Esq., Grand Junction, CO, (For Claimant).
Clyde E. Hook, Esq., Denver, CO, (For Respondents).