W.C. No. 4-595-287.Industrial Claim Appeals Office.
October 3, 2005.
ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 9, 2005. We dismiss the appeal for lack of a final order.
Under § 8-43-301(2), C.R.S. 2005, 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).
On February 23, 2005, the claimant filed an Application for Hearing on the issues of penalties and temporary total disability (TTD) benefits. Specifically, the claimant requested penalties for the respondents’ “failure to follow proper procedures regarding the termination of TTD benefits,” and the “failure to file a Petition to Modify, Terminate or Suspend Benefits prior to terminating benefits; 8-43-304 C.R.S.” A hearing was scheduled for May 10, 2005.
In an order dated June 9, 2005, the ALJ found the claimant failed to “state with specificity the grounds on which the penalty is being asserted” as required by § 8-43-304(4), C.R.S. 2005. Consequently, the ALJ struck the penalty issue listed on the claimant’s Application for Hearing.
The claimant timely appealed the June 9 order. However, the respondents moved to dismiss the appeal on grounds the June 9 order was interlocutory. The claimant objected and argued that the hearing was also set on the issue of TTD benefits and because the ALJ did not award TTD benefits, the June 9 order was immediately appealable.
The ALJ found the issue of TTD was listed on the Application for Hearing but was not endorsed at the commencement of the hearing on May 10. Furthermore, the ALJ found the respondents agreed that “penalties” was the only issue for adjudication.
Moreover, the ALJ pointed out that the June 9 order expressly provided that it was limited to the issue of penalties. Therefore, the ALJ determined the June 9 order did not award or grant any benefit or penalty. However, the ALJ declined to rule on the respondents’ motion to dismiss the claimant’s petition to review the June 9 order and deferred that determination to the Panel.
We agree with the ALJ that the June 9 order does not award or deny any benefit or penalty within the meaning of § 8-43-301(2) because it does not preclude the claimant from filing a new hearing application on the issue of penalties and expressly reserves all other issues for future determination. Consequently, the June 9 order is interlocutory and not currently reviewable.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated June 9, 2005 is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Connor Wenglewick, Parker, CO, Betty Mitchell, BancTec, Inc., Dallas, TX, Insurance Company of the State of Pennsylvania, c/o Carol Keim, AIG Claim Services, Inc., Phoenix, AZ, Mark A. Simon, Esq., Denver, CO, (For Claimant).
Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).