W.C. No. 4-237-910Industrial Claim Appeals Office.
October 25, 1995
ORDER
The claimant has filed a petition to review an order issued by Administrative Law Judge Gandy (ALJ) on August 9, 1995. We dismiss the petition to review without prejudice.
The record reveals that the respondents filed a General Admission of Liability which admits that the claimant sustained an occupational disease and that the disease accounts for 10% of the claimant’s temporary total disability. The claimant objected and applied for a hearing on the issue of temporary total disability, which was subsequently scheduled for July 28, 1995.
No evidence was presented on July 28. Instead, the parties agreed to brief the issue of whether liability for temporary disability benefits is subject to apportionment under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
After the matter was briefed, the ALJ entered his order of August 9, 1995, which concluded as a matter of law that the apportionment principles established in Anderson v. Brinkhoff, supra, apply to all workers’ compensation benefits including temporary disability, permanent disability and medical benefits. The ALJ’s order further provides that the claim for “100% payment of all compensation and benefits” is denied and dismissed, and the respondents shall pay compensation in the percentage that the claimant’s disability is attributable to the occupational disease. For purposes of determining the actual percentage of the respondents’ liability, the ALJ authorized the parties to submit briefs, or request an evidentiary hearing by filing an Application for Hearing.
The claimant contests the ALJ’s order insofar as it refers to the apportionment of medical benefits and permanent disability benefits, arguing that the sole issue before the ALJ was temporary disability benefits. The claimant also states that he intends to seek an evidentiary hearing and requests that the ALJ’s order be modified to permit the parties to reset the matter as a continuance from the July 28 hearing instead of filing a new Application for Hearing.
The respondents concede, and have no objection to claimant’s request that the ALJ’s order be modified. However, the respondents argue that the ALJ’s order is not currently subject to appellate review. We agree with the respondents.
Under § 8-43-301(2), C.R.S. (1995 Cum. Supp.), 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. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Although the ALJ purportedly concluded that the respondents are liable for less than 100% of the claimant’s temporary total disability, the ALJ did not determine the actual percentage of the respondents’ liability. In fact, the ALJ ordered further proceedings to determine the extent of the respondents’ liability. Furthermore, the ALJ did not award or deny any specific medical, temporary disability or permanent disability benefits. Consequently, the ALJ’s order is not a final order within the meaning of §8-43-301(2), and the order is not yet reviewable. See United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994) (remand for further proceedings on the merits of penalty claim is an interlocutory order); Director of Division of Labor v. Smith, 725 P.2d 1161
(Colo.App. 1986) (order granting petition to reopen without determining the amount of benefits due was not final).
Similarly, the ALJ’s order concerning the filing of a new Application for Hearing is a procedural order, and thus, is interlocutory. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) (discovery orders not appealable); Figal v. City of Pueblo,
W.C. No. 3-690-844, September 12, 1994 (order declining to hold hearing on a motion for protective order) (Court of Appeals dismissed appeal in 94CA1596, because neither ICAO order nor underlying order was final).
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated August 9, 1995, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced in theColorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filinga petition for review with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed October 25, 1995 to the following parties:
James M. Schibler, 1606 Silvergate Rd., Ft. Collins, CO 80526
Anheuser Busch, Inc., Attn: John Buck, P.O. Box 2000, Ft. Collins, CO 80524
Pacific Employers’ Insurance, Attn: John Bearss, P.O. Box 2941, Greenwood Village, CO 80150-0141
Jan A. Larsen, Esq., P.O. Box 270008, Ft. Collins, CO 80527-0008 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., #3100, Denver, CO 80202
BY: _______________________