W.C. No. 4-463-765.Industrial Claim Appeals Office.
October 7, 2005.
ORDER
The respondents seeks review of an order of Administrative Law Judge Margot Jones (ALJ) that denied and dismissed the claimant’s motion for sanctions and penalties. We set aside the order denying penalties, remand that issue for further proceedings and dismiss the remainder of the appeal for lack of a final order.
In the course of the litigation of this matter, procedural disputes occurred. The claimant had filed a motion to compel regarding interrogatories he had sent to the respondents. This motion was granted by order dated April 1, 2004. Discovery disputes continued and the claimant filed a motion for evidentiary sanctions for failure to comply with the order compelling discovery and penalties. The motion for sanctions and penalties was denied in summary fashion by order of May 4, 2005.
The claimant contends that in the order of May 4, 2005 there is a complete absence of findings of fact which constitutes error under §8-43-301(8), C.R.S. 2005. The respondents argue the ALJ’s order does not grant or deny any benefits and thus, is interlocutory. We agree with the respondents in part.
Under § 8-43-301(2), C.R.S. 2005, 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. Embanks, 775 P.2d 88 (Colo.App. 1989). Generally, orders involving discovery and the presentation of evidence are interlocutory because they do not involve an award or denial of benefits or penalties. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).
The portion of the ALJ’s order which deals with claimant’s request for evidentiary sanctions does not require any party to pay a penalty or benefits or deny the claimant a benefit or penalty. Thus this portion of the ALJ’s order is interlocutory and not currently reviewable. However, an order may be partially final and partially not final and that portion of an order which awards or denies a penalty or benefit may immediately be reviewed. Oxford Chemicals Inc., Richardson, 782 P.2d 843 (Colo.App. 1986); Director of the Division of Labor v. Smith, 725 P.2d 1161
(Colo.App. 1986).
The ALJ also denied the claimant’s request for penalties. Thus, that portion of the order is currently reviewable.
The claimant contends that the ALJ erred in dismissing his claim for penalties under § 8-43-304(1), C.R.S. 2005 for the respondents’ violation of the order to compel discovery. However, the ALJ’s order contains no specific findings of fact and conclusions of law. Under these circumstances, we are unable to ascertain the basis of the ALJ’s refusal to impose penalties. Consequently, the matter must be remanded for the entry of further proceedings and the issuance of specific findings of fact. Section 8-43-301(8).
On remand, the ALJ shall make findings determining whether facts justifying the imposition of a penalty on respondents exist, and whether it is appropriate under the circumstances of this claim to impose penalties under § 8-43-304(1). See Tooley v. Industrial Claim Appeals Office, (Colo.App. No. 01CA0222, September 27, 2001) (not selected for publication) [“when the order is one compelling discovery, the ALJ may, in its discretion, order penalties based on either § 8-43-304(1) or the specific penalty provision for discovery”]. In reaching this result, we should not be understood as expressing any opinion concerning the merits of the request for penalties or the respondents’ defenses.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated May 4, 2005, as it involves evidentiary sanctions, is dismissed without prejudice.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ to for further proceedings and the entry of a new order concerning the imposition of penalties for the respondents’ alleged failure to comply with the order to compel discovery.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Tom Schrant
Daniel Gonzales, S. Bryan Ave., Fort Collins, CO, Eastman Kodak Company, Lake Ave., Rochester, NY, Jolynn Lumbrazo, Gallagher Bassett Services, Inc., Denver, CO, Shelley P. Dodge, Esq., Gaylord St., Denver, CO, (For Claimant).
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., E. Mexico Ave., Denver, CO, (For Respondents).