W.C. No. 4-658-335.Industrial Claim Appeals Office.
September 21, 2011.
ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge (ALJ) Keith E. Mottram dated March 31, 2011, and mailed to the parties on April 1, 2011. We dismiss the petition to review without prejudice.
A hearing was held on the issues of whether the respondents overcame the DIME, whether the respondents were entitled to take credit for an overpayment and whether the claimant was entitled to disfigurement benefits. On January 31, 2011, the ALJ issued an Order which awarded the claimant permanent disability benefits and gave the respondents credit for an overpayment. The January 31, 2011, Order also stated, “All matters not determined herein are reserved for future determination.”
The parties filed separate motions for corrected order stating that the ALJ failed to address the issue of disfigurement. The respondents also alleged that the ALJ’s Order should not have contained the language, “All matters not determined herein are reserved for future determination.” The respondents argue that the ALJ erred in including this language because the parties did not reserve any issues for determination. The ALJ did not rule on the motions for corrected order within the time permitted by statute. Section 8-43-302, C.R.S.
The claimant timely filed a petition to review the January 31, 2011, Order on the issues of disfigurement, whether the ALJ erred in crediting or calculating the overpayment and whether the ALJ erred in failing to grant the claimant’s “Motion for Direct (sic) Verdict.” The claimant’s petition to review notes that the respondents filed a
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petition to review and had requested a full transcript of the hearing. However, the record before the panel does not contain a petition to review the January 31, 2011 Order from the respondents.
On March 31, 2011, the ALJ issued a Supplemental Order. The Supplemental Order did not change the original order except to award the claimant $900 for disfigurement benefits. The ALJ’s Supplemental Order was entered prior to the transcripts being lodged with the Division pursuant to § 8-43-301(3), C.R.S. Neither party raises the issue of whether the statutory process in § 8-43-301(3), C.R.S. is mandatory rather than directory and, therefore, we do not consider that issue here. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo. App. 1996).
The respondents filed a timely petition to review the Supplemental Order but failed to file an accompanying brief at the time of the petition to review as required by § 8-43-301(6), C.R.S. The claimant did not file a petition to review the Supplemental Order. We have reviewed this appeal based on the record before us. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
The only remaining issue on appeal is the respondents’ contention that the ALJ erred by stating “All matters not determined herein are reserved for future determination.” (emphasis added). The respondents specifically contend that at the time of the hearing, the parties did not reserve any issues for future determination.
The language reserving issues for future determination has long been included in orders issued by ALJs, and has been recognized by the Colorado Court of Appeals as being interlocutory since neither benefits nor penalties are granted or denied. See Hire Quest, LLC v. ICAO, ___ P.3d ___ (Colo. App. No. 10CA2450, Sept. 15, 2011) El Paso County Dep’t of Soc. Servs. v. Donn, 865 P.2d 877 (Colo. App. 1993); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo. App. 1991). Moreover, it is well settled that 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. Section 8-43-301(2), C.R.S. (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). Further, an order may be partially final and reviewable and partially interlocutory Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo. App. 1989). However, to be reviewable the order must finally dispose of the issue on appeal. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999). An order which contemplates further litigation of an issue is interlocutory. See M M Management v. Industrial Claim Appeals, 979 P.2d 574 (Colo. App. 1998).
Here, the respondents concede that the ALJ’s reservation of all matters for future
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determination is interlocutory. Nevertheless, the respondents raise the issue of the ALJ’s reservation of matters, in order to preserve the issue if the claimant seeks to endorse issues for future hearing absent a petition to reopen. We conclude, however, that we are precluded from considering whether the ALJ erred in reserving all matters for future determination. The ALJ’s Supplemental Order on this issue does not award or deny benefits or a penalty and contemplates further litigation of the issue. As such, the ALJ’s Supplemental Order on this issue is interlocutory and, therefore, not reviewable.
IT IS THEREFORE ORDERED that the respondents’ petition to review the March 31, 2011 Supplemental Order is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Brandee DeFalco-Galvin
_______________________ Kris Sanko
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ANITA TEETER, 855 MARLAND AVE., CRAIG, CO, 81625 (Claimant), CRAIG HOLIDAY AND FOOD BEVERAGE, Attn: HUMAN RESOURCES, C/O: ARDENT HOTEL ADVISORS, SCOTTSDALE, AZ, (Employer), ZURICH INSURANCE COMPANY, Attn: MELISSA RYAN, C/O: GALLAGHER BASSETT, ENGLEWOOD, CO, (Insurer), LAW OFFICE OF WILLIAM C. HIBBARD, Attn: WILLIAM C. HIBBARD, ESQ., STEAMBOAT SPRINGS, CO, (For Claimant).
RITSEMA LYON, Attn: LYNN P. LYON, ESQ., DENVER, CO, (For Respondents).
CHARTIS, Attn: MARK LEWIS, SHAWNEE MISSION, KS, (Other Party).