Opinion
W.C. No. 4-459-920.
July 24, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated February 27, 2007, that dismissed the claimant's petition to review the order of a prehearing administrative law judge (PALJ). We affirm.
No hearing was held in connection with this appeal. The record reflects that on December 15, 2006, the respondents filed a motion to strike the claimant's application for hearing on the issue of penalties against Pat Anctil, who was the respondents' vocational rehabilitation expert. A prehearing administrative law judge (PALJ) granted the motion and entered an order that stated,
"Claimant's October 31, 2006 application for hearing is stricken insofar as it pertains to Pat Anctil, the Design Center, and Mid-Century Insurance. Further, within ten days of the date this order is issued, claimant shall affirm whether he has finished his discovery of Ms. Anctil so that she can schedule a meeting with claimant, finish her vocational evaluation, and issue her report."
The application for hearing that was stricken by the PALJ's order sought penalties against Martin Rauer and Pat Anctil for "failure to prepare and tender a vocational evaluation report," and penalties against the insurer and the claimant's former attorney for "suppressing provision of a vocational report or failure to obtain and submit a vocational report after commissioning a vocational evaluation."
The claimant filed a petition to review the PALJ's order, reciting that the order was the equivalent of one granting summary judgment on the issue of penalties against Anctil, the employer, and the insurer. Accordingly, the claimant argued in his petition to review that the PALJ's order was a final one and that appeal was therefore proper to the Industrial Claim Appeals Office. The petition to review also stated, however, that an application for hearing had been filed "challeng[ing]" the PALJ's order.
By order dated February 27, 2007, ALJ Friend dismissed the petition to review the PALJ's order. The ALJ stated that no provision in the rules or in the Act authorizes a petition to review a PALJ's order, nor can an ALJ in the Office of Administrative Courts (OAC) consider and rule on such a petition to review.
The claimant filed a petition to review ALJ Friend's order dismissing the previous petition to review. That second petition to review is now before us on this appeal, raising the propriety of the ALJ's dismissal of the petition to review the PALJ's order. The claimant argues that the PALJ's order dismissing the penalty claim was final because it conclusively precluded the claimant from seeking penalties against Anctil and the insurer based upon Anctil's conduct prior to the filing of a final admission of liability. The claimant further argues that because the PALJ's order was final, appeal was properly to the Industrial Claim Appeals Office and, therefore, the ALJ erred in dismissing the petition to review. Because we disagree that the PALJ's order was final, we conclude that the ALJ properly dismissed the petition to review.
In dismissing the petition to review the PALJ's order, the ALJ relied in part upon our previous order in Hernandez v. Safeway, Inc., W.C. No. 4-630-249 (October 21, 2005). In Hernandez we affirmed an ALJ's dismissal of a petition to review the order of a PALJ and ruled that the order was only immediately reviewable by an ALJ in the OAC. We stated in Hernandez:
"Initially, we agree with the ALJ that a petition to review the PALJ's order is not properly filed with the OAC. Section 8-43-301(2), C.R.S. 2005 provides that any party dissatisfied with a final order "may file a petition to review with the director, if the order was entered by the director, or with the administrative law judge at the place indicated in the order, if the order was entered by the administrative law judge. . . ." The statute then authorizes the director or administrative law judge to review and "rule" on a petition to review either by entering a supplemental order or by transmitting the matter to the Industrial Claim Appeals Office for its review. The statute does not provide for filing a petition to review a PALJ's order with the OAC. Accordingly, we agree that the ALJ properly dismissed the petition to review."
The claimant argues that Hernandez is inapplicable here because the PALJ's order in that case was indisputably interlocutory while here it was a final one conclusively precluding the claimant's right to seek penalties against certain persons and entities. However, we disagree with the claimant's argument that the order here was final, and we decline to depart from our reasoning in Hernandez.
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. 2006. 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).
It is not necessary that all aspects of a claim be ruled upon for an order to be "final." However, the order must "finally dispose" of the issue presented. Bestway Concrete, Inc. v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo.App. 1999). Similarly, where the effect of an order is to terminate the litigation and deny relief, the order is final and reviewable pursuant to § 8-43-301(2). See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, supra.
However, contrary to the claimant's argument, we do not read the PALJ's order here as finally and conclusively terminating the claimant's right to seek penalties against Anctil and the respondents. Rather, in our view the order is in the nature of one designed to manage the course of this claim, by deferring the penalty issue until a point after the vocational rehabilitation expert's evaluation was completed. In general one purpose of the prehearing procedures is to facilitate orderly and expeditious adjudicative proceedings. To this end, § 8-43-207.5(1), C.R.S. 2006 authorizes any party to request a prehearing conference "for the speedy resolution of or simplification of any issues and to determine the general readiness of remaining issues for formal adjudication on the record." Section 8-43-207.5(2) authorizes the prehearing administrative law judges "to issue interlocutory orders" to effectuate those purposes.
As we read the PALJ's order, he concluded that the penalty claim against the vocational rehabilitation expert was premature because she had not completed the evaluation process that apparently gave rise to the claim for penalties. In this respect we do not construe his order as conclusively precluding litigation of the penalty issue. Indeed, the order expressly states that the claimant must notify the respondents whether discovery has been completed to permit Anctil to meet with the claimant "finish her vocational evaluation, and issue her report." By striking the application for hearing the PALJ deferred litigation of the penalty claim. However, nothing in the PALJ's order finally precludes the claimant from bringing it when the vocational evaluation process is completed.
We are aware, of course, that the claimant now argues that the PALJ's erred in striking the application for hearing. The claimant thus argues that he misunderstood the nature of his penalty claim against Anctil and the respondents, by assuming that Anctil had not completed her vocational evaluation and should be given an opportunity to do so prior to defending a penalty claim. The claimant further argues that the PALJ erred because the penalty claim was based upon Anctil's conduct prior to the respondents' filing of a final admission of liability and that, therefore, nothing that she did after that time is relevant to the penalty claim. Assuming, without deciding, that the claimant is correct and the PALJ did err or abuse his discretion in that respect, that merely goes to the correctness of the order. (We note that the propriety of the PALJ's order is not now before us. Rather, as noted, this appeal presents only the question whether ALJ Friend erred in dismissing the petition to review the PALJ's order.) That the PALJ may have erred or abused his discretion does not bestow upon his order finality in order to permit us to review it. Rather, as noted, the order is properly reviewed by an OAC ALJ in connection with a hearing. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) (PALJ orders relating to a prehearing conference are reviewable by an ALJ at a hearing). We therefore conclude that ALJ Friend did not err in dismissing the petition to review the PALJ's order.
The claimant has also moved to strike the respondents' brief and the attachments, which the claimant characterizes as an "unauthorized supplementation" of the record. We deny the motion to strike the brief. However, in adjudicating this appeal we have referred only to the arguments of the parties and the record as it was certified to us by OAC. We have not referred to attachments to the briefs, which may not substitute for materials properly included in the record. IT IS THEREFORE ORDERED that the ALJ=s order dated February 27, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
Steven U. Mullens, Esq, Colorado Springs CO, (ForClaimant).
Margaret Bauder Garcia Esq., Ritsema Lyon, P.C., Denver CO (For Respondent).
Lisa Watkins/Joe Atkinson, Mid-Century Insurance Company, Denver CO, Ronald Nemirow, Esq., Denver CO, Scott Nixon, Esq., Greenwood Village CO. Steven Picardi, Esq., Denver CO, Lori M. Moore, Esq., Colorado Springs, CO.