Opinion
W.C. No. 4-321-357
May 23, 2003
ORDER
The claimant seeks review of orders of Administrative Law Judge Klein (ALJ) dated December 5, 2002. We dismiss the appeal for lack of a final order.
On July 24, 2002 the claimant filed an Application for Hearing on the issue of whether the respondents filed a valid final admission of liability. A hearing was scheduled for December 4, 2002. At the commencement of the hearing, the respondents file a motion requesting the ALJ strike the hearing as a sanction for the claimant's willful failure to comply with a prehearing order on discovery. In the order dated December 5, 2002, the ALJ granted the respondents' motion.
On review, the claimant contends the ALJ's erred in failing to recuse himself from the claim. The claimant also contends the ALJ erroneously found a willful violation of the prehearing order.
Section 8-43-301(2), C.R.S. 2002 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. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Procedural rulings, including those governing the presentation of evidence, are not final and reviewable because they do not award or deny benefits or penalties. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Further, only final orders are subject to our review. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
Contrary to the claimant's contentions, the December 5 order does not deny the claimant any benefit or penalty. Rather, the order merely struck the claimant's application for hearing without prejudice to any of the issues raised in the application for hearing.
Furthermore, insofar as the claimant contends the ALJ should have granted his motion for recusal, the ALJ's failure to do so does not deny any benefit or penalty and, thus, is not immediately subject to review. See Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002). Indeed, an ALJ's order which denies a motion for recusal is only reviewable when incident to a final order that grants or denies a benefit or penalty. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). Under these circumstances, the claimant's petition to review the ALJ's order is premature and we must dismiss the appeal for lack of jurisdiction. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated December 5, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be 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. 2002. 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 May 23, 2003 to the following parties:
David McCord, 7599 W. 72nd Ave., #12, Arvada, CO 80003
Lakewood Meridian, L.L.P., c/o John Brewer, Legan, Inc., 1225 17th St., #2440, Denver, CO 80202
Insurance Company of the State of Pennsylvania, c/o Rusty Pinckney, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
W. Berkeley Mann, Jr., Esq. and Margaret R. Curry, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado