W.C. No. 4-532-289.Industrial Claim Appeals Office.
November 16, 2005.
ORDER OF REMAND
The claimant seeks review of an order dated August 4, 2005 of Prehearing Administrative Law Judge Jaynes (PALJ), which granted respondents’ Christofferson Commercial Builders and Pinnacol Assurance’s motion to dismiss the claimant’s petition to reopen. The claimant contends that the PALJ exceeded his statutory authority as provided for in § 8-43-207.5 C.R.S. 2005. We dismiss the petition to review and remand the matter for further proceedings.
A hearing was held before Administrative Law Judge Felter (ALJ), who entered an order dated August 1, 2003 dismissing the claimant’s workers’ compensation claim against Christofferson Commercial Builders, Inc. On May 4, 2005 the claimant filed a petition to reopen on the grounds of error or mistake. A prehearing conference was held on July 29, 2005. Following this prehearing the PALJ issued an order dated August 4, 2005 determining that the claimant did not file a petition to review the ALJ’s order of August 1, 2003 and the claimant cannot substitute a petition to reopen for a petition to review. The PALJ found that the claim against Christofferson Commercial Builders and Pinnacol was barred as a matter of law. The PALJ allowed the claimant to proceed to hearing against other respondents. The claimant filed a petition to review the order of the PALJ with us.
We hold that the PALJ’s order is properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review to the Industrial Claim Appeals Office. Section 8-43-207.5(2) grants the PALJs the authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3) states that orders entered by PALJs are “binding on the parties,” but the provision also states that “such an order shall be interlocutory.” In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) the supreme court held that a PALJ’s order approving a settlement agreement is final and subject to review. However, the court also stated that orders “relating to a prehearing conference” entered by a PALJ are interlocutory and not subject to appeal. The basis for the court’s holding was that orders relating to a prehearing conference are reviewable at a full hearing before the director or an ALJ. In this regard the court stated that “the propriety of the PALJ’s prehearing order may be addressed at the subsequent hearing.”Orth, 965 P.2d at 1264; Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, (Colo.App. 2003) (ALJ has authority to override the ruling of a PALJ). In Hernandez v. Safeway W.C. 4-630-249 (October 21, 2005) we concluded that a PALJ’s order is properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review. We adhere to our previous conclusion.
IT IS THEREFORE ORDERED that the matter is remanded for further proceedings consistent with this order.
Thomas Anthony Fox, c/o Steven H. Gurwin, Esq., Christofferson Commercial Builders, Inc., Colorado Springs, CO, Wendy’s International, c/o James B. Fairbanks, Esq., Mile High Roofers, LLC, Westminster, CO, Legal Department, Pinnacol Assurance — Interagency Mail Pacific Employers Insurance Company, c/o Mattie Barnes-Hall, Woodland Hills, CA, Steven H. Gurwin, Esq., Denver, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents Christofferson Commercial Builders, Inc. and Pinnacol Assurance)
James B. Fairbanks, Esq., Denver, CO, (For Respondents Wendy’s International and Pacific Employers Insurance Company)
Todd Barnett and Joy Barnett, Mile High Roofers, Littleton, CO.