W.C. No. 4-723-603.Industrial Claim Appeals Office.
September 19, 2008.
ORDER DISMISSING PETITION TO REVIEW
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated May 19, 2008, that denied the claimant’s claim for temporary total disability benefits on the ground that the claimant was responsible for the termination of his employment. We dismiss the petition to review without prejudice.
A hearing was held on the issue of whether the respondents proved that the claimant was precluded from receiving temporary total disability because he was responsible for the termination of his employment. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The employer operates a mining company that acquires, develops, and mines coal deposits. The claimant, who began working for the employer in 1988, was principally employed as a welder, but also occasionally worked as a lead or supervisory employee in charge of a work crew. On April 18, 2006, the employer gave to the claimant a “Code of Conduct,” which “extensively detailed” the employer core values and policies regarding safety on the job. By virtue of his position as a supervisor, the claimant underwent training regarding health and safety issues. On May 11, 2007, the claimant sustained an admitted industrial injury when he fell while attempting to change ropes on a dragline. The claimant was not wearing a safety harness at the time of his fall, which was a violation of a safety rule adopted by the employer. On June 7, 2007, the claimant sent an email message to the employer confirming his commitment to the employer’s safety principles and stating that his own safety and that of his co-workers was important to him and that he would strive to comply with all safety rules and procedures. On June 20,
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2007, the employer issued to the claimant a “final written notice” concerning the injury that occurred on May 11th, imposing certain conditions on the claimant’s employment and requiring him to take certain steps intended to train him in safety procedures. The claimant was advised that further infractions might lead to disciplinary action that could include the claimant’s termination from employment.
On September 6, 2007, the employer’s health and safety inspector, Lara Sims, was performing a “dragline inspection,” accompanied by the claimant, who was working in a supervisory capacity. Sims observed a welder, Karl Orth, who was a member of the work crew supervised by the claimant, and she noted that he was not wearing safety glasses. Sims noted to the claimant that Orth was not wearing safety glasses and the claimant responded that he was, but that they had simply slipped down his face. The claimant also asked Orth at the time whether he had obtained the necessary “hot work permit” and, when Orth responded in the negative, the claimant instructed him to get one. Approximately an hour later the claimant spoke with a supervisor, Mike Wilhite, and conceded that he had lied to Sims about Orth’s failure to wear safety glasses. At approximately 8:00 p.m. that evening, the claimant telephoned Sims and apologized to her for lying about Orth’s safety glasses. The claimant assured Sims that he would not repeat that conduct.
The claimant was discharged on September 17, 2007, for his dishonesty during the safety inspection and for failing to fulfill his commitment to the employer’s safety procedures and policies. The ALJ found that the reason for his discharge was not the claimant’s safety rule violation in connection with his industrial injury. Rather, it was because he was “untruthful” during the safety inspection and thereby failed to demonstrate his compliance with the employer’s efforts to insure a safe workplace.
Based upon his factual findings, the ALJ concluded that the claimant was responsible for the termination of his employment. Accordingly, he denied temporary total disability benefits under § 8-42-105(4), C.R.S. 2008, and § 8-42-103(1)(g), C.R.S. 2008 (the termination statutes). We also note that the ALJ stated in the “Order” portion of the written order that “[a]ll issues not resolved in this Order are reserved for future determination.” Findings of Fact, Conclusions of Law, and Order at 7, ¶ 2.
The claimant appealed the ALJ’s order and raises only the argument that the ALJ’s failure to adjudicate the question whether the claimant committed a safety rule violation leaves that issue open for determination in the future. However, because that portion of the ALJ’s order is not final and reviewable, we have no jurisdiction to resolve the question. In this regard, we note that the relief requested by the claimant at the close of his brief in support of the petition to review is “an Order from this Panel that the safety
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rule offset remains for future determination.” Opening Brief at 7. We infer from this request for relief that the claimant is not arguing that the ALJ erred in failing to actually adjudicate the issue of the safety rule violation. Rather, the claimant is merely seeking a declaration or advisory opinion that the issue was not finally decided by the ALJ’s order and remains open for future determination.
Section 8-43-301(2), C.R.S. 2008, 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). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144
(Colo.App. 1986); Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (order requiring payment of benefits “to which the claimant may be entitled” was not yet reviewable). 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).
Here, as we read the claimant’s argument, he has not asserted that the ALJ erred in any specific respect. Rather, he seeks an order that is advisory or interpretive in nature, resolving the question whether the issue of a safety rule violation remains open for litigation in the future. Since the ALJ’s order in this respect is not final and reviewable, we are without jurisdiction to resolve this question and must necessarily dismiss the petition to review.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated May 19, 2008, is dismissed without prejudice.
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INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
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STEVE WILKINSON, CRAIG, CO, (Claimant).
COLOWYO COAL COMPANY, MEEKER, CO, (Employer).
AIG RISK MANAGEMENT SERVICES, Attn: CHRIS MATCHETT/PAM MOON, C/O: SEDGEWICK CLAIMS MANAGEMENT SVC INC, GREENWOOD VILLAGE, CO, (Insurer).
LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D O’TOOLE, ESQ, DENVER, CO, (For Claimant).
HALL EVANS, LLC, Attn: BRET J ROUNDY, ESQ, DENVER, CO, (For Respondents).