Opinion
W.C. No. 4-575-874.
May 26, 2004.
ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the respondents are entitled to reduce the claimant's compensation by fifty percent pursuant to § 8-42-112(1)(d), C.R.S. 2003 (willfully misleading employer concerning ability to perform job). We dismiss the petition to review without prejudice.
This claim was originally set as a full contest. However, on the day of the hearing the respondents agreed to admit liability and to pay medical benefits. Thus, at the commencement of the hearing the remaining issues included liability for five days of temporary total disability (TTD) benefits, and the respondents' contention the claimant is subject to a reduction in compensation pursuant to § 8-42-112(1)(d). However, after some testimony claimant's counsel withdrew the claim for TTD benefits and the matter proceeded on the penalty issue only. (Tr. P. 12).
On November 26, 2003, the ALJ entered an order granting the respondents' "request for a 50% penalty" and reserving all other issues. The claimant petitioned to review arguing the ALJ's pertinent findings of fact are not supported by substantial evidence in the record.
Section 8-43-301(2), C.R.S. 2003, provides a party may file a petition to review an order of an ALJ "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." Orders which do not meet one of these criteria are interlocutory and not subject to immediate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003).
The ALJ's order does not currently require the claimant to pay a penalty, nor does it deny the claimant any benefit. The penalty imposed under § 8-42-112(1)(d) reduces "compensation," but it does not affect medical benefits. See Wild West Radio, Inc. v. Industrial Claim Appeals Office, 886 P.2d 304 (Colo.App. 1994), opinion after remand, 905 P.2d 6 (Colo.App. 1995) (reaffirming opinion in Wild West I). Here, there has been no determination that the claimant is entitled to any "compensation" to which the penalty applies. Consequently, the order does not currently require the claimant to pay a penalty, nor does it deny the claimant any benefits. Cf. Kloess v. Home Lumber Co., W.C. No. 4-584-185 (March 11, 2004) (where order did not require the respondents to pay any TTD benefits or other compensation, the respondents' appeal from ALJ's order denying penalties for use of a controlled substance and violation of safety rule was not final and reviewable because the order did not award or deny any benefits or require the claimant to pay a penalty); see also, Barto v. Autobahn Autobody, Inc., W.C. No. 4-137-657 (May 27, 1993). It cannot now be determined whether the ALJ's ruling will ever affect the claimant's entitlement to benefits.
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated November 26, 2003, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Kathy E. Dean
Maria Myers, Colorado Springs, CO, Marilyn Cale, Pikes Peak Mental Health, Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Michael W. McDivitt, Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).