W.C. No. 4-188-325Industrial Claim Appeals Office.
July 8, 1997
ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which struck the claimant’s application for a hearing. We dismiss the petition to review without prejudice.
It is undisputed that the respondents filed a final admission of liability dated June 22, 1995. The admission listed the amount of medical benefits paid, and stated that “all benefits not admitted below are hereby specifically denied.” The admission did not admit for ongoing medical benefits unde Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant concedes that he did not file a timely objection to the final admission pursuant to § 8-43-203(2)(b), C.R.S. (1996 Cum. Supp.).
In October 1996, the claimant filed a Petition to Reopen Claim. On the petition form, the claimant marked spaces indicating that the claim should be reopened because of error, mistake and change of condition. However, the claimant placed the notation “N/A” beside each of these grounds for reopening. The claimant also filed an application for hearing listing the issues as medical treatment after maximum medical improvement and petition to reopen claim.
The respondents then filed a “Motion to Strike Application for Hearing.” The motion averred that the claim was closed because the claimant did not file a timely objection to the 1995 final admission. Consequently, the respondents contended that the application for hearing should be “stricken” because the petition to reopen did not allege any statutory basis for reopening the claim under § 8-43-303, C.R.S. (1996 Cum. Supp.), and because the petition did not state with specificity the particular errors or mistakes as required by Rule of Procedure X(B)(3), 7 Code Colo. Reg. 1101-3 at 37.
The claimant filed a response to the motion admitting that a final admission of liability was filed. However, the claimant alleged that the respondents continued to pay medical benefits subsequent to the final admission, and that “for reasons unknown, . . . unilaterally chose to terminate” those benefits. Thus, the claimant argued that he was entitled to ongoing medical benefits because the respondents had waived, or were estopped from asserting, that they had a right to terminate benefits based on the final admission.
On December 4, 1996, the ALJ entered an “Order Striking Claimant’s Application for Hearing.” The ALJ concluded that the application for hearing should be stricken because the claimant “failed to comply with Rule X of the Workers’ Compensation Rules of Procedure by failing to submit a valid Petition to Reopen Claim.” The claimant appealed that order.
Initially, the claimant contends that he is entitled to a hearing without filing a petition to reopen because the final admission did not admit or deny “Grover medical benefits.” We reject this argument.
Section 8-43-203(2)(d), C.R.S. (1996 Cum. Supp.), provides that an issue closed by a proper final admission “may only be reopened pursuant to § 8-43-303.” Here, it is undisputed that the respondents’ final admission addressed the issue of “medical benefits,” and did not admit for Grover benefits. Further, the admission provided the warnings required by § 8-43-203(2)(b). Thus, as the ALJ implicitly concluded, the record establishes that the issue of “medical benefits” was closed by the final admission, and therefore, is not subject to further adjudication unless the matter is reopened. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995).
Nevertheless, the claimant asserts that, because the respondents continued to pay medical benefits subsequent to the final admission, they necessarily waived or are estopped from asserting that the claim for Grover medical benefits was closed by the final admission. However, we conclude that the ALJ’s order is not final with respect to this issue.
Under § 8-43-301(2), C.R.S. (1996 Cum. Supp.), a dissatisfied party may file a petition to review an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” 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. See Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Here, the ALJ exercised his discretionary authority to strike the application for hearing due to the claimant’s failure to file a petition to reopen which complies with the specificity requirements of Rule of Procedure X(B)(3). This ruling was fully within the discretionary authority of the ALJ. See Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). However, the ALJ’s order in no way denies the claimant the medical benefits which he is seeking. To the contrary, the order merely precludes the claimant from obtaining a hearing until he files a petition to reopen which complies with the specificity requirements. Under these circumstances, the order is not final and reviewable, and the claimant’s petition to review must be dismissed without prejudice.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated December 3, 1996, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
An action to modify or vacate the 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 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. (1996 Cum. Supp.).
Copies of this decision were mailed July 8, 1997 to the following parties:
Robert A. Esquibel, 540 Whimsical Dr., Colorado Springs, CO 80917
Virginia Reed, Victorian Janitorial Services, 1826 E. Platte Ave., Ste. 204, Colorado Springs, CO 80909-5738
Colorado Compensation Insurance Authority, Curt Kriksciun, Esq., (Interagency Mail).
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909, (For the Claimant).
Cheryl A. Martin, Esq., 3464 S. Willow St., Denver, CO 80231-4566, (For the Respondents).
By: ________________________________