Opinion
W.C. No. 4-167-575
December 26, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied permanent total disability (PTD) benefits. We affirm.
The claimant suffered compensable injuries in 1993. The claimant applied for a hearing on the issues of temporary disability, permanent partial disability, medical benefits, disfigurement, penalties, and PTD benefits. In a pre-hearing order dated August 20, 1999, the hearing was vacated and a hearing on the issues of medical and temporary disability benefits was ordered to be reset 35 to 45 days later. The order also provided that the issue of PTD could be reset on a new application for hearing.
On October 18, 1999, the matter was heard by ALJ Schulman, who subsequently entered a Summary Order on November 8, 1999, which awarded medical benefits and penalties for the respondent's failure to timely pay for treatment of the industrial injury. The November 8 order did not expressly reserve any issue for future determination, and the order was not appealed.
On March 14, 2003, the claimant applied for a hearing on the issues of medical benefits, penalties, and PTD benefits. The respondent moved to strike the application for hearing on the issue of PTD on grounds the issue was closed by the November 1999 order. The ALJ agreed and therefore granted the motion to strike in an order dated September 2, 2003.
On appeal the claimant contends the ALJ erroneously struck the application for hearing on the issue of PTD. The claimant argues the pre-hearing order reserved the issue of PTD and the hearing before ALJ Schulman was limited to the issues of medical benefits and penalties. Therefore, the claimant contends the November 8 order did not foreclose further litigation on the issue of PTD. We are not persuaded there is any error.
Initially, we reject the respondent's contention that the ALJ's order is interlocutory because the ALJ did not preclude the claimant from filing a petition to reopen the issue of PTD.
Section 8-43-301(2), C.R.S. 2003, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty," may file a petition to review. In contrast, an order which does not require the payment of benefits or penalties, or deny the claimant benefits or penalties is interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
An issue may be closed by a "final award" resulting from an order after a contested hearing. The term "award" includes an order which grants or denies benefits. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). Under the statutory provisions currently codified at § 8-43-303, C.R.S. 2003, the claimant is precluded from receiving further benefits after a claim is closed, unless there is an order reopening the claim on the grounds of error, mistake, or change of condition. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
Here, the ALJ's order effectively denies PTD benefits unless and until the claimant establishes grounds to reopen the claim, so it is a final order within the meaning of § 8-43-301(8). Therefore, the order is subject to review.
In Brown Root, Inc. v Industrial Claim Appeals Office, supra, the court held that an order which denied temporary disability benefits, but contained an express reservation of jurisdiction over the subject of permanent disability, did not close the claim. However, the court concluded that if the order had not contained an express reservation, it would "normally" have been considered an award requiring a reopening prior to granting any other benefits. Accordingly, Brown Root holds that unless an ALJ's award of benefits expressly reserves other issues for future determination, the "award" closes the claim and subjects the parties to the reopening requirements prior to litigation of any further issues. See D. Cain , The Colorado Lawyer, Brown Root: When an ALJ's Order is an "Award," September 1993, Vol. 22, No. 9 p. 1927.
As argued by the claimant, the pre-hearing order "reserved" the issue of PTD for future litigation upon the filing of a new Application for Hearing. Further, the pre- hearing order did not require the issue of PTD to be heard at the hearing on the issues of medical and temporary disability benefits. However, the respondent contended and the claimant admitted that she filed an Application for Hearing on August 27, 1999, which endorsed the issues of medical benefits, penalties, and PTD. ( See Motion to Strike Claimant's Application for Hearing, August 11, 2003, para. 6; Response to Motion to Strike Claimant's Application for Hearing, August 18, 2003, para. 4). The claimant also conceded that although the issue of PTD was endorsed on the Application for Hearing, ALJ Schulman did not rule on the issue of PTD. It follows that when the claimant filed the August 27, 1999 Application for Hearing on the issue of PTD, the issue was properly before ALJ Schulman for adjudication.
It is true that ALJ Schulman did not purport to address the issue of PTD benefits at the hearing on October 18, 1999. Nevertheless, insofar as the claimant sought to preserve the issue for future litigation, Brown Root compels the conclusion the claimant was required to ensure ALJ Schulman included an express reservation clause in her order. ALJ Schulman did not expressly reserve the issue of PTD for later adjudication. Consequently, the ALJ did not err in finding the issue was closed, subject to the claimant's right to file a petition to reopen under § 8-43-303.
The claimant's further arguments have been considered and do not alter our conclusions. The respondent's Motion to Strike the Application for Hearing explicitly argued that the issue of PTD was closed. Thus, we reject the claimant's contention that the respondent waived the closure argument.
IT IS THEREFORE ORDERED that the ALJ's order dated September 2, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on December 26, 2003 by A. Pendroy.
Sharon Ceretto, 201 2nd St., Fort Lupton, CO 80621
Brighton School District 27-J, 630 So. 8th Ave., Brighton, CO 80601-3257
Dave Carroll, Adams County BOCES, 10290 Huron St., Northglenn, CO 80221
Teresa Manshardt, G. E. Young Company, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Jack Taussig, Esq., 1919 14th St., #803, Boulder, CO 80302 (For Claimant)
Patricia Jean Clisham, Esq. and Keith E. Mottram, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)