W.C. No. 4-367-093.Industrial Claim Appeals Office.
July 19, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which vacated his Application for Hearing dated February 20, 2004. We affirm.
Although the record transmitted to us on review does not contain any documentary support, the following facts are apparently undisputed. The claimant suffered a compensable injury in 1997. On February 14, 2003, the respondent filed a Final Admission of Liability (FAL). The claimant timely objected to the FAL, and requested a Division-sponsored independent medical examination on the issues of maximum medical improvement (MMI) and permanent impairment. The claimant also filed an Application for Hearing on the issues of temporary total disability, permanent partial disability (PPD), permanent total disability (PTD), disfigurement and Grover-type medical benefits. However, the claimant never set the Application for a hearing.
A DIME was completed in May 2003. On June 24, 2003, the respondent filed an amended FAL which admitted liability for PPD benefits consistent with the DIME physician’s rating. On July 3, 2003, the claimant objected to the FAL and filed a new Application for Hearing on the issues of PPD, PTD, disfigurement and Grover-type medical benefits. A hearing was scheduled, however in August 2003, the Division of Administrative Hearings vacated the hearing on grounds the Application for Hearing was defective.
In February 2004, the claimant filed a new Application for Hearing on the sole issue of PTD. The respondent moved to strike the Application for Hearing on grounds the claimant failed comply with § 8-42-211 (2) (e), C.R.S. 2003 and the Rules of Procedure, Part VIII(A), 7 Code Colo. Reg. 1101-3.
The ALJ determined the claimant failed to comply with HB 03-1322 [8-42-211(2) (e)], within 30 days of the June 24 FAL. Therefore, the ALJ entered summary judgment which determined that all issues excep Grover-type medical benefits were closed. The ALJ also determined the February 20 Application for Hearing was not timely filed. Therefore, the ALJ vacated the hearing set on the February 20 Application for Hearing.
The claimant timely petitioned for review of the ALJ’s order. However, the respondent contends we lack jurisdiction to review the ALJ’s order because the claimant failed to appeal the “Director’s order” dated August 18, 2003, which vacated the claimant’s July 2003 Application for Hearing. We conclude the respondent has failed to sustain its burden of proof on this issue.
We do not have jurisdiction to review an ALJ’s order unless a timely petition to review is filed. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995). Section 8-43-301 (2), C.R.S. 2003, provides that a petition for review must be filed “within twenty days from the day of the certificate of mailing of the order.” However, these provisions only apply to review of final orders. A final order is an order which denies the claimant a benefit or penalty. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533
(Colo.App. 1997).
Here, it is undisputed that an order vacating the hearing scheduled on the claimant’s July 2003 Application for Hearing was entered in August 2003. However, the August order was procedural and apparently did not purport to dismiss the case. Consequently, the August 2003 order was not immediately reviewable and the claimant’s failure to file a petition to review the August order does not deprive us of jurisdiction to review the ALJ’s order.
On review of the ALJ’s order, the claimant contends that regardless of any defect in the July 2003 Application for Hearing, the issues were preserved in the March 2003 Application for hearing. Consequently, the claimant argues the ALJ erroneously found the issue of PTD was automatically closed 30 days after the filing of the June 24 FAL. The claimant also contends the negligence of his prior attorney in failing to comply with HB03-1322 cannot be imputed to him for purposes of precluding litigation on the issue of PTD.
The respondent contends these arguments were not raised before the ALJ and thus, argues they are not properly before us on appeal. We agree.
Parties are expected to raise all issues and defenses before the ALJ and we may not consider issues raised for the first time on appeal. Cf. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935) Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). Under § 8-43-203 (2) (b) (II), C.R.S. 2003, the claimant has 30 days after the date the respondent files a FAL consistent with the findings of the DIME physician to file an application for hearing on any disputed issues. The failure to comply with § 8-43-203
(2) (b) (II) automatically closes all issues admitted in the FAL.
Insofar as pertinent, HB 03-1322 (2003 Colo. Sess. Laws, Ch. 306 at 1956), created § 8-42-211 (2) (e) which requires that:
“Except in claims in which compensability is contested, the party filing an application for hearing shall certify on the application that the party attempted to resolve with the other parties all issues listed in the application for a hearing.”
HB 03-1322 expressly applies to claims filed or pending after July 1, 2003.
The claimant’s “Reply to Motion to Strike Application for Hearing” dated March 5, 2004, contends the July 2003 objection and Application for Hearing substantially complied with HB03-1322. However, the Reply did not mention the March 2003 Application for Hearing. Neither did the claimant contend he could not be foreclosed from litigating the issue of PTD due to the error of his former attorney. Rather, these arguments were raised for the first time in the claimant’s Brief in Support of the Petition to Review. Under these circumstances, we shall not address these arguments on appeal.
Moreover we lack jurisdiction to declare HB 03-1322 violates constitutional due process protections. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Therefore, we do not consider the claimant’s due process arguments.
Finally, we reject the claimant’s contention that he necessarily complied with HB 03-1322 because a hearing was initially set on his July 2003 Application for Hearing. The record is legally insufficient to determine why the hearing that was initially set on the July 2003 application for hearing was vacated as well as why the hearing was initially scheduled.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 8, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Robert M. Socolofsky
Paul Kolesar, Arvada, CO, United Airlines, DIA, Denver, CO, Jeff LaBelle, Gallagher Bassett Services, Inc., Englewood, CO, Ralph Ogden, Esq., Denver, CO, for Claimant.
Marc F. Bendinelli, Esq., Denver, CO, for Claimant.
Lynn Lyon, Esq. and T. Paul Krueger, II, Esq., Denver, CO, for Respondent.