W.C. No. 4-584-233.Industrial Claim Appeals Office.
December 30, 2005.
ORDER
The claimant seeks review of an order dated July 21, 2005 of Administrative Law Judge Coughlin (ALJ) that struck his application for hearing. We dismiss the petition to review without prejudice.
A hearing was held on July 5, 2005, at which Administrative Law Judge Harr presided. Although the claimant appeared in person, as did respondents’ counsel, the claimant’s interpreter failed to appear. A previous order issued on March 30, 2005 by a Prehearing Administrative Law Judge (PALJ) had identified the sole issue to be adjudicated at that hearing as the propriety of the PALJ’s order striking all other issues. ALJ Harr granted the claimant a continuance in order to secure the attendance of an interpreter. Before the hearing adjourned the ALJ instructed the claimant to answer the respondents’ interrogatories pursuant to a previous PALJ’s order. He requested respondents’ counsel to prepare a procedural order permitting discovery, granting the claimant a continuance, and requiring the claimant to answer the repondents’ interrogatories within ten days. He advised the claimant that if the interrogatories were not answered, his application for hearing would be stricken and he would not be able to obtain a hearing until he complied with his discovery obligations. Tr. (7/5/2005) at 14-15.
On July 21, 2005, another hearing was held at which Administrative Law Judge Coughlin presided. At the commencement of the hearing the ALJ noted that the hearing was scheduled to begin at 3:15 p.m. and that it was then 3:24 p.m. and the claimant had not arrived. Tr. (7/21/2005) at 2. The ALJ then noted that the file contained a proposed order for ALJ Harr’s signature, but that he had not yet signed it. Following a discussion with respondents’ counsel, ALJ Coughlin then signed the procedural order “for” ALJ Harr, and in addition entered a separate order striking the claimant’s application based upon his failure to appear. The respondents’ counsel requested an order dismissing the claim; however, ALJ Coughlin responded that she was merely striking the application for hearing and that the respondents could seek any further relief in the future. Tr. (7/21/2005) at 6. The ALJ then closed the hearing. The transcript reflects that after some unspecified length of time the claimant appeared and stated that he had been delayed by a flat tire. The ALJ explained that she had entered an order on his claim. Tr. (7/21/2005) at 7-8.
The claimant petitioned to review the ALJ’s “order dated July 21st, 2005.” Initially, however, we note that it appears that two separate orders were entered on that date and, further, that the claimant appears to have confused the two. The claimant has not filed a brief in support of his petition to review, and thus our insight into his appeal is somewhat hindered. However, he recites in the petition to review that ALJ Harr presided at the July 21, 2005 hearing, and that ALJ Coughlin later entered an order “on behalf of ALJ Harr” striking the application for hearing. From the record before us, neither statement appears accurate. Rather, ALJ Coughlin presided at the July 21, 2005 hearing and, although she executed the procedural order “for” ALJ Harr, the order striking the application was her own and was the result of the brief hearing held on July 21, 2005.
Even if we construe the claimant’s petition to review as properly perfecting his appeal of ALJ Coughlin’s order, in our view the order is not presently final and reviewable. Section 8-43-301(2), C.R.S. 2005 provides that any dissatisfied party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817
(Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
An order striking an application for hearing based on the claimant’s failure to appear for the hearing is not a final and appealable order, since it does not award or deny a penalty or a benefit. E.g., Eachus v. Pioneers Hospital, W.C. No. 4-406-492
(July 1, 2005). And insofar as the claimant is arguing in his petition to review that the order is final because it “bar[s]” him from pursuing any further benefits, we disagree. It is true that we have previously held that it is sometimes necessary to examine the provisions of the order to determine whether “i effectively denies the claimant any benefits.” Meza v. Conagra Beef Company, W.C. No. 4-444-220 (December 11, 2000) (emphasis added). Thus, in Meza we held that an order striking a Division independent medical examination was reviewable because it effectively precluded the claimant from seeking further temporary disability benefits. However, this is not such a case. The issue to be heard pursuant to the stricken application for hearing was the propriety of the PALJ’s order. The order does not foreclose the filing of a subsequent application nor, indeed, does it have any effect other than striking an application for a hearing that was held and concluded before the claimant’s late appearance. Under these circumstances, the ALJ’s order is not final and reviewable at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 21, 2005, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Rodolfo Ramos, Greeley, CO, Bella Vista Stucco, Greeley, CO, Legal Department, Pinnacol Assurance — Interagency Mail Darby L. Hoggatt, Esq., Fort Collins, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).