W.C. No. 4-209-907Industrial Claim Appeals Office.
October 11, 1996
ORDER
This matter has been transmitted to us pursuant to the claimant’s Petition for Review of an order of Administrative Law Judge Stuber (ALJ) dated February 20, 1996. We conclude that the ALJ’s order is not currently subject to review, and therefore, we dismiss the Petition for Review without prejudice.
The matter came before the ALJ on the following stipulated facts. The claimant suffered compensable injuries due to the actions of third parties. On October 9, 1995 Fireman’s Fund Insurance Company, the workers’ compensation insurance carrier, approved a $55,000 settlement of the claimant’s third party negligence action. Fireman’s Fund Insurance Company (Fireman’s Fund) received $11,000 of the settlement proceeds, and the claimant received a net amount of $23,260.01.
Thereafter, Fireman’s Fund claimed a right to offset its liability for permanent partial disability benefits by the claimant’s share of the third party settlement proceeds. As a result, a dispute arose concerning whether Fireman’s Fund accepted the $11,000 as satisfaction of its existing lien for workers’ compensation benefits, or whether it agreed to waive the right to an offset against its liability for future workers’ compensation benefits.
The ALJ determined that, as a theoretical matter, an insurer may offset the amount of the claimant’s recovery in a third-party settlement against its liability for future compensation benefits. In so doing, the ALJ explicitly recognized the parties’ factual dispute concerning whether, in this claim, Fireman’s Fund waived its right to offset future benefits. (Tr. pp. 8, 9, 18).
However, the parties expressly reserved the issue of whether Fireman’s Fund “waived” its right to an offset against future workers’ compensation benefits in this claim, and instructed the ALJ not to resolve that factual dispute. See (Stipulated Facts, paragraph 10; Tr. pp. 7, 16-17). Therefore, the ALJ did not resolve the ultimate question of whether Fireman’s Fund is entitled to an offset under the facts of this claim.
Under these circumstances, the ALJ’s order is not a final resolution of the claimant’s entitlement to further workers’ compensation benefits from Fireman’s Fund. Thus, the ALJ’s order is interlocutory and not a “final” order within the meaning of §8-43-301(2), C.R.S. (1996 Cum. Supp.). Consequently, we lack jurisdiction to review the ALJ’s order and must dismiss the claimant’s appeal. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989) (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).
IT IS THEREFORE ORDERED that the claimant’s Petition for Review of the ALJ’s order dated February 20, 1996, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 11, 1996 to the following parties:
John P. Lemberg, P.O. Box 1747, Crested Butte, CO 81224
Ankmar Door Sales, Inc., 4005 Grape St., Denver, CO 80216-4511
Firemans Fund Insurance Co., 7600 E. Eastman, Tamarac #3, Denver, CO 80231
Vernon Playton, Esq., 1200 Lincoln St., Ste. 650, Denver, CO 80203-2164 (For the Claimant)
Richard K. Rediger, Esq., 7600 E. Eastman Ave., Ste. 403, Denver, CO 80231 (For the Respondents)
Daniel L. English, Esq., 5400 Ward Road, Bldg. 1, Ste. 200, Arvada, CO 80002
BY: _______________________