W.C. No. 4-675-284.Industrial Claim Appeals Office.
August 20, 2009.
FINAL ORDER
The claimant seeks review of an order of the Director of the Division of Workers’ Compensation (Director) dated April 8, 2009, that ordered the claimant’s Application for Hearing to be stricken and any hearing set pursuant to the application to be vacated. We affirm.
The following facts appear to be undisputed. The claimant suffered a compensable claim and the respondent filed a Final Admission in April 2007. The claimant objected to the admission and ultimately the parties entered into a settlement agreement resolving the matter. The case was closed. The claimant filed an application for hearing on October 20, 2008 seeking penalties against US Med Group, dba Advanced Medical specialists of Denver, Dr. Kathryn Mueller as Medical Director for the Division, and the University of Colorado Health Sciences Center. The penalties were for the alleged issuance of an improper medical report on the issues of maximum medical improvement report and impairment rating. At a prehearing conference counsel for the claimant and counsel for the named respondent entered into a stipulation that the respondent would not be a party involved with the October 30, 2008 application for hearing. This stipulation was approved by a prehearing administrative law judge.
The Director entered a Show Cause order on February 27, 2009 directing the claimant to show cause why his application for hearing should not be stricken and any hearing vacated. The Director noted that following the stipulation at the prehearing conference the only party remaining was the claimant. The Director further noted that the claimant had failed to join indispensable parties to the claim for penalties and that, in
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any event, the claim was closed. The Director concluded that the claimant failed to state any claim upon which relief could be granted.
The claimant responded to the Show Cause Order stating that there were pending claims for the imposition of statutory penalties pursuant to § 8-43-304(1) C.R.S. 2009 against “non-parties” to the action and that a penalty is expressly permitted to be imposed against “any person” pursuant to § 8-43-304(1), C.R.S. 2009. The Director in an April 8, 2009 order, which is here under review, determined among other things that the claimant had filed an application for hearing when the underlying claim was closed pursuant to a full and final settlement agreement. The Director determined that this would result in a hearing over fruitless allegations, upon which no Administrative Law Judge would have any authority to act.
The claimant brings this appeal contending that the Director erred in striking his application for hearing. The claimant contends that he timely endorsed statutory penalty claims against non-parties and is entitled to an evidentiary hearing before an Administrative Law Judge. We are not persuaded that the Director committed reversible error.
We initially note that the claimant’s reliance upo Cornerstone Partners v. Industrial Claim Appeals Office 830 P.2d 1148 (Colo. App. 1992), is misplaced, at least to the extent that he cites it as authority that the Director lacked authority to act on this matter. Contrary to the claimant’s argument that the Director lacked authority in this matter, i Cornerstone the court recognized that § 8-43-201, C.R.S. 2009 grants the Director original jurisdiction to hear and decide all matters arising under the Workers’ Compensation Act. The Director had the statutory authority to enter the April 8, 2009 order.
Generally, an order striking an application for hearing is not a final and appealable order, since it does not award or deny a penalty or a benefit. It follows that an order which strikes an application for hearing is not an appealable order because such an order does not award or deny a penalty or benefit. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo. App. 1985); Eachus v. Pioneers Hospital, W.C. No. 4-406-492 (July 1, 2005); Ramos v. Bella Vista Stucco, W. C. No. 4-584-233 (December 30, 2005).
However, an order may be final and reviewable pursuant to § 8-43-301(2) if its effect is to terminate the litigation and deny relief. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997). Here the resolution of the issue of whether the claim is closed could terminate litigation and therefore is reviewable. See Stinson v. Duck Co., W.C. No. 4-271-437 (January 26, 1998) (where
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ALJ struck an application for hearing on grounds the claim was closed by a final admission, the order was not interlocutory where the claimant alleged the claim had not been properly closed and, therefore, it was unnecessary for him to file a petition to reopen to obtain additional benefits). Accordingly, we conclude that we have jurisdiction to review this order.
An order, whether resulting from an admission, agreement, or a contested hearing, which addresses benefits and which grants or denies a benefit, constitutes an award. After an award becomes final by exhaustion of or failure to exhaust review proceedings, no further benefits may be awarded unless there is an appropriate order to reopen the proceedings. See Burke v. Industrial Claim Appeals Office 905 P.2d 1 (Colo. App. 1994). Here the parties entered into a settlement agreement. In the settlement agreement, the claimant forever waived and released any and all claims he might have arising out of or in relation to the workers’ compensation claim against the respondent, its employees or agents. This settlement agreement was approved by the Director in an order dated May 30, 2008. Therefore, in our opinion the claim was closed. Moreover, we reject the claimant’s argument that the settlement did not close the issue of penalties against non-parties to the claim, such as doctors who treated the claimant. We note in this respect that § 8-43-303(4), C.R.S. 2009 appears to contemplate that, although “issues” certainly may be closed, it is also the case that an entire “claim” may be closed subject to the reopening statute. Thus, that subsection states that the party “attempting to reopen an issue or claim shall bear the burden of proof as to any issues sought to be reopened.” In our view the full and final settlement of all issues closed “the claim” subject to reopening. We note that the application for hearing does not endorse reopening as an issue to be considered at the hearing. Therefore, we perceive no error in the Director’s action of striking the claimant’s application for a hearing on a closed claim.
Because of our resolution of this dispute it is unnecessary for us to consider the further basis in the Director’s order that § 8-43-304 does not permit the penalties sought by the claimant in this case.
IT IS THEREFORE ORDERED that the Director’s order dated April 8, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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IRA A SANDERS, 314 DEFRANCE COURT, GOLDEN, CO, (Claimant).
DEPT OF LABOR AND EMPLOYMENT, Attn: KATHRYN MUELLER, MD, C/O: STATE OF COLORADO, DENVER, CO, (Employer).
LAW OFFICES OF RICHARD K. BLUNDELL, Attn: RICHARD K. BLUNDELL, ESQ., GREELEY, CO, (For Claimant).
RITSEMA LYON, PC, Attn: JOEL POLLACK, ESQ., DENVER, CO, (For Respondents).
DIVISION OF WORKERS’ COMPENSATION, Attn: BOB SUMMERS, DENVER, CO, (Other Party).
PINNACOL ASSURANCE, Attn: TINA PINEDA, CLAIMS REP, DENVER, CO, (Other Party 2).
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