W.C. No. 4-517-260.Industrial Claim Appeals Office.
September 9, 2009.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 2, 2009, that granted the respondent’s motion to strike the claimant’s application for hearing and granted the respondent’s request for a protective order precluding the claimant from “filing any further pleadings in this matter.” We dismiss the petition to review insofar as it seeks review of the portion of the order striking the claimant’s application for hearing. We set aside the order precluding the claimant from filing further applications for hearing.
On July 29, 2008, a Prehearing Administrative Law Judge (PALJ) granted the respondent’s motion to dismiss with prejudice for failure to abide by a discovery order. A prehearing conference was held on September 11, 2008 on the claimant’s motion to set aside the July 29, 2008 PALJ’s order. Following the prehearing conference the PALJ, in an order dated September 12, 2008, denied the claimant’s motion. On February 6, 2009, the claimant filed an application for hearing on the issue of medical benefits. The respondent filed a motion to strike the claimant’s application for hearing on the grounds that the claim had previously been dismissed with prejudice. On March 24, 2009, the ALJ entered an order striking the application and vacating the hearing that had been set. The claimant filed another application for hearing on the same issues concerning medical benefits. The respondent filed a motion to strike the claimant’s application for hearing and requested entry of a protective order. The ALJ in an order dated June 2, 2009 struck the claimant’s application for hearing and ordered that the claimant shall not file any further pleading in this matter as the claim had been dismissed with prejudice, except that a petition to reopen is permitted by statute. The claimant appealed the ALJ’s June 2, 2009 order.
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On appeal, the claimant contends that the PALJ did not have jurisdiction to dismiss the claim with prejudice. In connection with this argument the claimant argues that he is entitled to a hearing before an Office of Administrative Courts ALJ to review the PALJ’s order dismissing his claim. Under the circumstances here, we agree with the claimant’s argument that he is entitled to a hearing to obtain review of the PALJ’s order dismissing his claim.
We first conclude that the portion of the order striking the application was not final and subject to review. The Workers’ Compensation Act grants us jurisdiction only to review an order, which, requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty. Section 8-43-301(2), C.R.S. 2009. Thus, an order must satisfy the finality criteria set forth in that statute or we lack jurisdiction. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989). The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997). The order must “finally dispose” of the issue presented. Bestway Concrete, Inc. v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo. App. 1999). Similarly, where the effect of an order is to terminate the litigation and deny relief, the order is final and reviewable pursuant to § 8-43-301(2). See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, supra.
Insofar as it merely struck the claimant’s application for hearing on the issue of medical benefits, the ALJ’s order did not finally deny any benefits. An order vacating a hearing typically is not final and reviewable. See McCormick v. Exempla Healthcare, W.C. No. 4-594-683 (April 13, 2007) (dismissing order striking application for hearing and vacating scheduled hearing). We conclude that the ALJ’s order striking the hearing does not effectively conclude the litigation and permanently deny the claimant any relief. That portion of the order does not terminate the litigation See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, supra. Consequently we consider the ALJ’s order striking the hearing as interlocutory and not subject to our review.
However, the portion of the order precluding the claimant from filing “any further pleadings in this matter” is final and reviewable. We do not view the ALJ’s order in this respect merely as a protective order preventing the claimant from renewing his claim for medical benefits until he complies with certain discovery obligations. If the order were that narrow in scope it would likely be interlocutory and not presently reviewable, since its denial of medical benefits would be only temporary and provisional pending the claimant’s compliance with some other obligation. However, the breadth of the order prohibiting the filing of “any” pleadings in this matter is such as to effectively preclude
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any further action whatever in this matter. Indeed, the claimant arguably violated the order by filing a petition to review the order itself. In our view the order finally disposes of all potential action in the case and terminates not just the litigation over the specific medical benefits sought here, but all litigation that may occur in the future. The order is therefore final within the meaning of BCW Enterprises, Ltd.
Moreover, we do not view the ALJ’s handwritten notation that the claimant may file a petition to reopen as rendering the order interlocutory rather than final. A petition to reopen may always be filed subject to the terms of § 8-43-303, C.R.S. 2009. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996). However, the Director and the administrative law judges have broad discretion whether to reopen on the grounds enumerated in the statute as permissible ones for that action. Hoover v. Industrial Commission, 156 Colo. 147, 397 P.2d 223 (1964) (commission’s discretion whether to reopen is “absolute”). And the observation that the claimant may permissibly file a petition to reopen, although precluded from filing any other pleadings, does not alter the effect of the ALJ’s order in foreclosing any review of the PAL’s order dismissing the claim. In fact, the reference to a petition to reopen as an available remedy to the claimant seems to confirm that the ALJ viewed the PALJ’s order as closing the claim and precluding any further action. In this respect, we do not intend to express any opinion regarding the precise effect of the PALJ’s order, including the issue whether it is final. We note that in “dismissing” the claim it is unclear from the PALJ’s order whether it merely “dismissed” the claim for medical benefits then pending or whether it purported to “dismiss” the workers’ compensation claim. These are questions that presumably must be resolved prior to determining whether the PALJ had authority to enter the order; however, that order is not presently before us. In any event, the order precluding “any further pleadings” is presently reviewable here.
As previously noted, we do not view the ALJ’s order as merely a protective order entered in the normal course of discovery. Rather, in prohibiting any further action, the order is one akin to a dismissal of the claim. We therefore review the ALJ’s order de novo Cf. State Farm Fire and Casualty Co. v. Weiss, 194 P.3d 1063 (Colo. App. 2008) (review of dismissal under C.R.C.P. 12(b)(5) is de novo); Hansen v. Long, 166 P.3d 248, 250-51 (Colo. App. 2007) (review of dismissal under C.R.C.P. 12(b)(1) is de novo).
We conclude that the ALJ erred in precluding the claimant from obtaining further review of the PALJ’s order. We have held previously that orders of a PALJ are properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review to the Industrial Claim Appeals Office. Section 8-43-207.5(2) grants the PALJs the authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3) states that orders entered by PALJs are “binding on the parties,” but the provision also states that “such an order shall be interlocutory.” In Industrial Claim
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Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) the supreme court held that a PALJ’s order approving a settlement agreement is final and subject to review. However, the court also stated that orders “relating to a prehearing conference” entered by a PALJ are interlocutory and not subject to appeal. The basis for the court’s holding was that orders relating to a prehearing conference are reviewable at a full hearing before the Director or an ALJ. In this regard the court stated that “the propriety of the PALJ’s prehearing order may be addressed at the subsequent hearing.”Orth, 965 P.2d at 1264; Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, (Colo. App. 2003) (ALJ has authority to override the ruling of a PALJ). In Hernandez v. Safeway
W. C. 4-630-249 (October 21, 2005) we concluded that a PALJ’s order is properly reviewable by an ALJ pursuant to an application for hearing rather than a petition to review. We adhere to our previous conclusion.
In the present case we agree with the claimant that he is entitled to review of the PALJ’s order by an ALJ in the Office of Administrative Courts. The specific relief requested by the claimant is reversal of the ALJ’s order and a remand “with instructions that the case be set for hearing on the validity of the pre-hearing ALJ’s order.” However, our review of the record indicates that there was some dispute regarding whether that issue was ever properly endorsed by the claimant. We note that the claimant asserts in his brief in support of the petition to review that a hearing was set and that he “intended to raise the jurisdictional defect in Judge DeMarino’s order.” Although our review of the claimant’s applications for hearing discloses that the issue was not endorsed, the respondent’s response to the first application did endorse as an issue “to be heard” at the hearing that the claim was “previously dismissed with prejudice.” Under these circumstances, we decline to order that “the case be set” on the issue of review of the PALJ’s order. We merely hold that the ALJ erred in precluding the filing of any further pleadings in this matter and we set that order aside. The claimant is therefore free to seek review of the order using any proper procedural avenue available to him.
IT IS THEREFORE ORDERED that the claimant’s petition to review the portion of the ALJ’s order dated June 2, 2009 striking the application for hearing is dismissed without prejudice.
IT IS FURTHER ORDERED that the portion of the order precluding the claimant from filing any further pleadings is set aside.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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DAVID C ANDERSON, FOUNTAIN, CO, (Claimant).
LAW OFFICE OF WILLIAM ALEXANDER, JR., PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: HOLLY M BARRETT, ESQ., DENVER, CO, (For Respondents).
ESIS PORTLAND — WC CLAIMS, Attn: LAURIE MCGUIRE, TAMPA, FL.
TRUBLUE, INC., TACOMA, WA.
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