Opinion
W.C. No. 4-382-047
July 25, 2002
ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which upheld a discovery order issued by Prehearing Administrative Law Judge Thomas DeMarino (PALJ). We dismiss the appeal without prejudice.
On October 2, 2000, the PALJ granted the respondents' "Motion to Compel" the claimant's response to interrogatories. The PALJ also ordered the claimant to attend an independent medical examination. The claimant filed a petition to review under § 8-43-301 C.R.S. 2001.
Relying on Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998), we concluded the propriety of the PALJ's order could be reviewed by an ALJ at a subsequent hearing. Therefore, we held the PALJ's order was interlocutory and not immediately subject to review. The Court of Appeals dismissed the claimant's appeal from our order and the Supreme Court denied the claimant's petition for writ of certiorari.
Thereafter, the claimant sought review of the PALJ's order by the ALJ. On December 14, 2001, the ALJ found the PALJ did not exceed his statutory authority in issuing the October 2 discovery order. In so doing, the ALJ rejected the claimant's contention that under the Rules of Procedure, Part VIII(E)(1), 7 Code Colo. Reg. 1101-3, an application for hearing is a prerequisite to a request for interrogatories. Therefore, the ALJ determined the PALJ did not err in ordering the claimant to respond to the respondents' interrogatories. The claimant timely appealed the ALJ's order.
Section 8-43-301(2), C.R.S. 2001, provides that any 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. Orders concerning procedural issues, including discovery matters, do not satisfy the statutory definition of an appealable order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, (May 17, 1994) (order denying claimant's motion that the insurer pay the costs of an DIME was not appealable; petition for writ subsequently dismissed by the Court of Appeals on July 6, 1994, for lack of a final, appealable order by the ICAP and the ALJ); cf. Sheid v. Hewlett Packard, 826 P.2d 39 (Colo.App. 1991) (involving review of an order which dismissed a claim for benefits as a sanction for failing to comply with a discovery order). Rather, an interlocutory order becomes reviewable when incident to a final order which awards or denies benefits or penalties. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
In American Express v. Industrial Commission, supra, the insurer sought review of an order which granted the insurer's request to depose a witness, but required the insurer to pay the expenses incurred by the claimant's attorney to attend the deposition. The court held the order was interlocutory and not subject to review until the entry of a subsequent order which denied the insurer's request to withdraw an admission of liability.
Here, the ALJ's order does not award or deny any benefits or penalties within the meaning of § 8-43-301(2). To the contrary, the ALJ's order merely requires the claimant to comply with discovery. Thus, the ALJ's order is interlocutory in nature.
Moreover, we reject the claimant's contention that the ALJ's order is incident to the Director's final order issued on October 29, 2001, which granted the respondents' request for attorney fees. The Director awarded attorney fees for time spent by the respondents' counsel to respond to the claimant's previous appeal from the PALJ's order, not the claimant's failure to comply with discovery order.
Further, the claimant's appeal from the Director's order awarding attorney fees is not currently before us on review. See American Express v. Industrial Commission, 712 P.2d at 1134 (term "penalty" refers to an amount of money to be paid for the failure to obey an order or take required procedural steps.) Therefore, we conclude that we lack jurisdiction to review the ALJ's order, and must dismiss the claimant's petition to review.
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated December 14, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 decision were mailed July 25, 2002 to the following parties:
Estate of Paul D. Dannaman, c/o Carol Kennedy, 5305 22nd St., Lubbock TX 79407
Susan Jackson, Sturgeon Electric Company, 12150 E. 112th, Henderson, CO 80640
Diane Gutierrez, Zurich Insurance Company, P.O. Box 370308, Denver, CO 80237
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Marsha A. Kitch, Esq., 1202 Bergen Parkway, #311, Evergreen, CO 80439 (For Respondents)
BY: A. Hurtado