ORDER OF REMAND

The claimant seeks review of an order of a Prehearing Administrative Law Judge (PALJ) that granted a motion to dismiss her claim, together with a corresponding order by Administrative Law Judge (ALJ) Stuber that vacated a hearing on related issues. We set aside the ALJ's order and remand this matter to the ALJ for further proceedings.

The record reflects the following procedural history. The respondents sought discovery from the claimant, who is proceeding on her own behalf. To that end, they also sought a medical release from the claimant. A PALJ entered corresponding discovery orders. The claimant executed a release, but also filed an objection to the release, which the PALJ construed to be the claimant's request to effectively quash and invalidate the release that she had executed. The respondents then requested that the claimant's claim be dismissed. After a pre-hearing conference, the PALJ issued a written order entitled "Pre-hearing Conference Order" and dated July 9, 2007. The order states that the respondents' motion to dismiss the claim is granted and notes the claimant's failure to comply with three previous discovery orders compelling her to execute an appropriate medical release. The PALJ's order states in closing that the claimant's request to quash the executed medical release, together with review of the dismissal of her claim with prejudice, could proceed to hearing before the ALJ.

A few days later on July 12, 2007, the ALJ entered an order vacating the hearing. According to the order, the parties appeared before the ALJ on July 12, 2007 to begin the hearing. The matter had been previously scheduled for June 19, 2007, to consider various issues concerning disability and medical benefits. The ALJ noted that he could review a PALJ's interlocutory prehearing conference order as indicated by the Colorado Supreme Court in Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) ( Orth). However, the ALJ determined that the PALJ's order stating that the claim was dismissed constituted a final order, which he concluded he was without authority to review. The ALJ therefore struck the claimant's application for hearing and vacated the hearing. His order also advises that, to the extent the PALJ can enter a final order, review must be sought by petitioning for review by the Panel. We conclude otherwise and remand this matter to the ALJ for consideration of the PALJ's order.

Initially, we determine that the ALJ's order effectively denies the claimant benefits and is, therefore, reviewable. The 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. 2007. 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). 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, supra.

An order merely vacating a hearing typically would not be reviewable. See, e.g., McCormick v. Exempla Healthcare, W.C. No. 4-594-683 (April 13, 2007) (dismissing order striking application for hearing and vacating scheduled hearing). However, the ALJ's order determined that he was without authority to consider the claim in light of the PALJ's actions, which effectively concludes the litigation and denies the claimant any relief. We therefore consider the ALJ's order to be subject to our review.

We conclude that the ALJ erred by not reviewing the PALJ's order. In Orth, the supreme court examined the duties of a PALJ and determined that a settlement agreement involving a pro se claimant and approved by a PALJ was reviewable as a final order. The Colorado Court of Appeals had concluded that the statutory provisions governing a PALJ classified a PALJ's order approving a settlement as interlocutory, the term albeit a misnomer. Orth v. Industrial Claim Appeals Office, 942 P.2d 1368, 1369 (Colo.App. 1997). The court of appeals also determined that questions regarding the PALJ's jurisdiction could be reviewed by an ALJ. Id. The supreme court determined that a PALJ had jurisdiction to approve settlement agreements and, also, that the corresponding order was final for purposes of review. Orth, 965 P.2d at 1252-53.

In reaching its decision, the supreme court concluded "that the General Assembly intended that the orders of a PALJ that relate to prehearing conferences are not final for purposes of appeal." Id. at 1254. The court noted that its construction of the statute governing PALJs recognized that its "primary purpose . . . relates to prehearing conferences." Id. The court further observed that "it makes sense to treat a PALJ's order relating to a prehearing conference as interlocutory (i.e., not immediately reviewable) because a prehearing conference, by definition, is followed by a full hearing. . . ." Id. As noted by the respondents, that is not always the case. Nonetheless, the supreme court clearly construed the PALJ's orders, other than those approving settlement agreements, not to be final, but in furtherance of their duties to conduct prehearing conferences and thereby "reduce the case loads of the ALJs." Id. at 1253.

To construe the PALJ's order in this case as anything other than not final, but subject to review by the ALJ, would contradict the primary legislative intent to "assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation. . . ." Section 8-40-102(1), C.R.S. 2007. Although the claimant was able to seek review within the time limits prescribed by § 8-43-301(2), C.R.S. 2007, parties in general, including pro se claimants, would be left to discern whether it was necessary to file a precautionary petition to review a PALJ's order to preserve their appeal rights. Thus, a petition to review a PALJ's prehearing conference order might be pursued rather than seeking a hearing before an ALJ, contrary to what the supreme court envisioned in Orth.

Furthermore, we have previously held that because the rulings of a PALJ, except those approving settlements, occur in the context of a "prehearing conference" and, because such orders are considered to be interlocutory, the ALJ retains jurisdiction to review the interlocutory rulings of a PALJ. Kennedy v. AAA Concrete W. C. No. 4-506-797 (September 12, 2003), aff'd, Kennedy v. Industrial Claim Appeals Office, 100 P.3d 949 (Colo.App. 2004). The court of appeals, in discussing the procedure of having a PALJ's interlocutory orders reviewed by an ALJ, noted that any change in the current procedure must come from the General Assembly. Id. at 950. Of course, an order dismissing a claim as the ultimate discovery sanction that is entered by an ALJ, as opposed to a PALJ, is final for purposes of review. See §§ 8-43-201, C.R.S. 2007 (ALJ has original jurisdiction to hear and decide all matters); 8-43-207(1)(e), C.R.S. 2007 (ALJ may rule on discovery matters and impose sanction provided by rules of civil procedure for willful failure to comply); 8-43-301(2), C.R.S. 2007 (order denying claimant benefit may file petition to review); C.R.C.P. 37(b)(2)(C) (action may be dismissed for party's failure to obey discovery order). Cf. § 8-43-207.5(2), C.R.S. 2007 (detailing authority of PALJ to issue interlocutory orders, including sanction of striking a party's application for hearing). However, the PALJ's decision is clearly related to the execution of her prehearing conference duties and is, therefore, not final. Moreover, it is apparent from the PALJ's order that she anticipated further consideration by an ALJ. Cf. 28 U.S.C.A. § 636(b)(1)(B) (federal judge may designate magistrate to conduct evidentiary hearings and submit proposed findings of fact and recommendations for disposition by judge). We conclude that the ALJ erred by not considering the PALJ's prehearing conference order and the corresponding disputes between the parties.

IT IS THEREFORE ORDERED that the ALJ's order dated July 12, 2007, is set aside. The matter is remanded for further proceedings consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________ John D. Baird

_______________________ Thomas Schrant

KATHERINE SZOT, CO, (Claimant)

U.S. SECURITY ASSOCIATES AKA ARKO, DENVER, CO, (Employer).

AMERICAN ZURICH, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).

RITSEMA LYON, P.C., Attn: T. PAUL KRUEGER, II DAWN M. YAGER, DENVER, CO, (For Respondents).