W.C. No. 4-334-453Industrial Claim Appeals Office.
May 27, 1998
ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which dismissed the claim for benefits without prejudice. We dismiss the claimant’s petition to review without prejudice.
The record reflects that the claimant filed an application for hearing in September 1997. The claimant listed the employer as Gates and Fox, Inc. (Gates Fox) but did not list any insurance carrier. Simultaneously, the claimant filed a motion to include the Colorado Compensation Insurance Authority (CCIA) as a party to the claim. The motion alleged that Gates Fox was a mining company, and that the CCIA insured nearly all mining companies during the 1970’s when the claimant allegedly sustained an occupational disease.
On December 8, 1997, the claimant filed a motion to add additional putative employers as respondents. The motion expresses doubt that Gates Fox was a mining company, and avers that the claimant last sustained a “harmful exposure” to his disease while employed by the companies he sought to add as respondents.
On December 10, 1997, CCIA moved to dismiss the claim alleging that the claimant was not seeking to add indispensable parties, but merely to create new claims against new parties. The CCIA also alleged there was no evidence whatsoever that it ever insured Gates Fox.
A hearing was held on December 15, 1997. Following the hearing, the ALJ entered an order dismissing the claim without prejudice. The ALJ opined that it was improper to add additional parties for purposes of creating new claims “against previously unnamed parties.” However, the ALJ indicated that the claimant could file a new claim including “the appropriate employers and insurers in order to ensure that all appropriate parties are provided the opportunity to litigate the claimant’s claim.”
Section 8-43-301(2), C.R.S. 1997, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” An order which does not require any party to pay a penalty or benefits, and does not deny the claimant any benefit or penalty, is interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
We have previously held that an ALJ’s order dismissing a claim for benefits without prejudice is interlocutory and not subject to review under § 8-43-301(2). See Rogers v. Lon’s Automotive, W.C. No. 3-050-295 (November 9, 1987). In the Rogers
case, we stated that the ALJ’s order dismissing the claim without prejudice was interlocutory because it did not require the respondents to pay benefits nor did it purport to deny the claimant any benefits. Instead, the order “merely determined a procedural matter.” See also, CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986) (order awarding permanent total disability benefits, but not addressing the insurer’s request for offset to the Subsequent Injury Fund, was not final with respect to the request for offset against the SIF).
Here, the ALJ’s order dismissing the claim without prejudice does not require any party to pay benefits nor does it deny the claimant any benefits or penalties. The ALJ has merely directed that the claim be refiled to ensure that the proper respondents are included and receive adequate notice of the claim. Consequently, the ALJ’s order is interlocutory and not currently subject to review.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated January 6, 1998, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate the Order may be commenced inthe Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court,with service of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty (20) daysafter the date the Order was mailed, pursuant to §§ 8-43-301(10)and 307, C.R.S. 1997.
Copies of this decision were mailed May 27, 1998 to the following parties:
Billy R. Singer, P.O. Box 1515, Kayenta, AZ 86033
Gates and Fox Co., Inc., Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq., (Interagency Mail)
Robert Dawes, Esq., 572 East Third Ave., Durango, CO 81301 (For the Claimant) By: __________________________________________________