Opinion
W.C. No. 4-388-006
January 16, 2002
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Klein (PALJ) which struck her application for hearing. We dismiss the petition to review without prejudice.
Although these pleadings are not in the record, it is undisputed the claimant filed an application for hearing on the issue of medical benefits. The respondent moved to strike the application on grounds that the issue was closed. On August 24, 2001, the PALJ granted the respondent's motion to strike the application for hearing with prejudice.
Section 8-43-301(2), C.R.S. 2001, 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. Procedural orders are generally not final and appealable. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).
Further, we lack jurisdiction to review the PALJ's order unless the claimant has filed a timely petition to review. Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984) ; Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). The record does not contain a "Petition to Review." However, we conclude the claimant's September 13, 2001 Request for Specific Findings of Fact and Conclusions of Law satisfied the jurisdictional statutory requirements for timely filing of a petition to review. See Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970); Ward v. Azotea Contractors, 748 P.2d 338, (Colo. 1987); Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980) (the substance of a document, and not its title, is determinative) ; Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970).
Section 8-43-207.5(2), C.R.S. 2001, grants a PALJ authority to "issue interlocutory orders" and "make evidentiary rulings." Section 8-43-207.5(3), C.R.S. 2001, provides that "an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties," but further provides "such an order shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998), the court held that a PALJ's order approving a settlement agreement is a final order subject to review. However, the court distinguished an order approving a settlement agreement from orders "relating to a prehearing conference." The court stated that orders relating to prehearing conferences are "interlocutory ( i.e., not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the Director or an ALJ." Id. 1254. The court also indicated that "the propriety of a PALJ's prehearing order may be addressed at the subsequent hearing." Id. at 1254.
Relying on Orth, we have previously held a PALJ's order striking a request for a DIME to contest the treating physician's medical impairment rating is interlocutory and not subject to immediate review under § 8-43-301(2). Lofgren v. Kodak Polychrome Graphics, W.C. No. 4-445-606, (December 18, 2000); Sander v. Summit Group Inc., W.C. No. 4-369-777, (September 27, 2000). In these cases, we concluded such an order does not award or deny any benefits, and is interlocutory because it is subject to further review by an ALJ employed by the Division of Administrative Hearings. We adhere to our prior conclusions.
Here, the claimant may request review by an ALJ of the propriety of the PALJ's order dated August 24, 2001. Consequently, the August 24 order is interlocutory and not currently subject to review.
IT IS THEREFORE ORDERED that the claimant's petition to review the PALJ's order dated August 24, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2001.
Copies of this decision were mailed January 16, 2002 to the following parties:
Elaine Voelker, 12919 W. 61st Circle, Arvada, CO 80004
Joe Carabajal, Exempla Lutheran Health Center, 8300 W. 38th Ave., Wheat Ridge, CO 80033
Lori Hasty, Sedgwick Claims Management Service, 1225 17th St., #2100, Denver, CO 80202
Mark A. Simon, Esq., 1873 S. Bellaire St., #605, Denver, CO 80222 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Pendroy