W.C. No. 4-785-525.Industrial Claim Appeals Office.
November 17, 2010.
ORDER
The respondent MKBS, LLC TIPQC, d/b/a Metro Taxi (Metro) seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 28, 2010 that granted Partial Summary Judgment for the respondent Pinnacol Assurance (Pinnacol). We dismiss the petition to review without prejudice.
The claimant sustained an injury on February 8, 2009 while driving a taxicab for Metro. The claimant filed a claim against Metro and Pinnacol. Following a prehearing conference an order dated April 30, 2009 was issued by Prehearing ALJ Fitzgerald (PALJ). The order stated that: “Respondent Employer Metro Taxi acknowledged at the Prehearing Conference that Pinnacol Assurance did not insure Metro Taxi’s taxi cab drivers on the date of the claimant’s alleged work injury.” Based on the joint stipulation and statement of counsel, the PALJ dismissed Pinnacol as a party to the claim, without prejudice.
The claimant and Metro proceeded to a hearing held before ALJ Friend. In an order dated November 12, 2009 ALJ Friend determined the claimant was not an independent contractor of Metro and found the claim compensable. ALJ Friend ordered Metro to pay certain benefits and to pay a penalty for failure to insure. Metro appealed and in an order dated May 3, 2010 we affirmed the order of ALJ Friend. Our order was not appealed.
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The claimant filed an application for hearing on April 1, 2010. The sole issue endorsed for hearing by claimant was “Coverage under Insurer’s Policy.” The claimant did not seek any specific benefits against either Metro or Pinnacol.
Pinnacol filed a Motion for Summary Judgment contending among other things that the doctrine of issue preclusion barred any claims against Pinnacol. ALJ Friend in his June 28, 2010 order granted Pinnacol’s Motion for Summary Judgment against Metro. However, ALJ Friend found that the claimant had not stipulated at the April 28, 2009 hearing that Pinnacol did not insure Metro’s drivers on the date of the accident and further noted that Pinnacol was dismissed without prejudice. Therefore, ALJ Friend found that issue preclusion did not apply to the claimant’s assertion that Pinnacol insured Metro and is therefore liable for his injuries. Consequently, finding that disputed issues of fact remained regarding the claimant’s assertion that the injuries were covered by Pinnacol, ALJ Friend denied Pinnacol’s Motion for Summary Judgment against the claimant. ALJ Friend ordered that the matter would proceed to hearing involving the claimant and Pinnacol but that the employer was not a party in interest at the hearing and would not participate in the hearing.
Metro appeals the June 28, 2010 order contending that ALJ Friend abused his discretion in entering Summary Judgment against it and, among other things, that issue preclusion is inapplicable. Pinnacol argues that ALJ Friend’s order granting summary judgment against Metro is interlocutory because it did not grant or deny any benefit, nor did it grant or deny any penalty. Pinnacol makes the following factual contentions in their Brief in Opposition to Metro’s Petition to Review. After the entry of summary judgment against Metro the matter proceeded to a hearing on July 8, 2010 and ALJ Friend found Metro’s drivers were insured by Pinnacol. ALJ Friend found the claimant could file a petition to reopen and seek benefits against Pinnacol but that Pinnacol could then raise other defenses. ALJ Friend concluded that his order was interlocutory because it did not award or deny any benefits. Pinnacol argues that Metro will be able to seek review of ALJ Friend’s granting summary judgment at a later time after it is resolved whether the claimant can recover benefits from Pinnacol. We agree with Pinnacol’s argument.
Metro argues that ALJ Friend’s June 28, 2010 order is final and subject to appeal because it denied Metro the benefit of having the question of insurance coverage determined now that the claimant had been found to be an employee and not an independent contractor. Metro contends that the specific issue of insurance coverage by Pinnacol could never be appealed by Metro, which would violate its due process rights.
The Workers’ Compensation Act only grants us jurisdiction to review an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or
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penalty. . . .” Section 8-43-301(2), C.R.S. 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). Instead, interlocutory orders are reviewable when appealed incident to a final order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo. App. 1985). 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).
In our view the ALJ’s order that granted partial summary judgment is not final and appealable under § 8-43-301(2), C.R.S. The order did not require any party to pay a penalty or benefits nor did it deny the claimant any benefit or penalty. Indeed, it appears that the only effect that the ALJ’s order will have will be to force the employer to sit on the sidelines during a proceeding in which the claimant asserts claims against Pinnacol. It is difficult to see any way in which the employer can be bound by proceedings from which it was excluded as a party. In any event, our jurisdiction is statutory and we have none to review this order.
IT IS THEREFORE ORDERED that Metro’s petition to review the ALJ’s order dated June 28, 2010 is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt kriksciun
____________________________________ Thomas Schrant
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MAHDI SIKKAL, 420 W 12TH AVENUE, DENVER, CO, (Claimant).
MKBS, LLC TIPQC SERVICES, LLC, Attn: KYLE BROWN/JAN L. HAMMERMAN, ESQ., C/O: D/B/A METRO TAXI, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
CHRISTOPHER C FELTON, PC, Attn: CHRISTOPHER C FELTON, ESQ., LITTLETON, CO, (For Claimant).
CLISHAM, SATRIANA BISCAN, LLC, Attn: PATRICIA J. CLISHAM, ESQ., DENVER, CO, (For Respondents).
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: THOMAS M STERN, ESQ., DENVER, CO, (Other Party).
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