Opinion
W.C. No. 4-621-358.
January 20, 2006.
ORDER
The claimant seeks review of an order dated August 12, 2005 of Administrative Law Judge Coughlin (ALJ) that denied the claimant a hearing on the issue of the respondent's administration of its wage continuation plan. We dismiss the petition to review without prejudice.
The claimant sought a hearing on the issue of "application of section 8-42-124 as offset against temporary total and temporary partial disability benefits." See Application for Hearing and Notice to Set (March 10, 2005). At the commencement of the hearing the respondents' attorney stated that the issue was "whether or not Respondent can proceed as a wage continuation plan, approved under 8-42-124." Tr. at 8. The respondents' attorney then moved to dismiss the issue, arguing that the Director of the Division of Workers' Compensation (the Director) has exclusive jurisdiction over wage continuation plans, and that the employer's plan here had been approved by the Director. The respondents' attorney asserted that "there is no provision under rule, or statute that allows an Administrative Law Judge to approve a wage continuation plan." Tr. at 8. The hearing was adjourned to permit the parties to brief that jurisdictional issue and the parties submitted position statements. At the hearing the respondents submitted to the ALJ an order of the Director in this claim "Confirming Status." The order recited that the employer has approval to pay injured workers in conformance with § 8-42-124, and that "[a]dmissions filed by United Airlines are reviewed by the Division of Workers' Compensation and reflect that payments are properly made to injured workers in excess of what the worker would receive in temporary total benefits."
The ALJ then entered an order denying the claimant's request for a hearing. The ALJ concluded that, because the Director "has already exercised jurisdiction over the wage continuation plan of United Airlines," the ALJ had no jurisdiction to hear the matter. She reasoned that she had no authority to enter an order "which would or could interfere or conflict with an order of the Director."
On appeal the claimant contends that the hearing was sought in order to establish that the employer's "actual practice in this case does not comport with the authorization given by the Director." Claimant's Brief in Support of Petition to Review at 3. The claimant further argues that the Director's order "confirming [the] status" of the employer's wage continuation plan does not purport to find or conclude that the plan is properly being administered in the claimant's particular case. We conclude that the ALJ's order is not presently final and reviewable and therefore dismiss the petition to review.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
As we read the ALJ's order, she correctly recognized that the Director and the ALJs employed by the Office of Administrative Courts have concurrent jurisdiction under the Act. Section 8-43-201, C.R.S. 2005 provides that "[t]he director and administrative law judges employed by the office of administrative courts in the department of personnel shall have original jurisdiction to hear and decide all matters arising under articles 40 to 47 of this title. . . ." Although the ALJ then stated that she "lack[ed] jurisdiction" to hear the issues raised, the actual basis for that conclusion was that the Director had "exercised jurisdiction" by entering an order regarding the employer's wage continuation plan. Hence, the ALJ's conclusion appears to be grounded in the view that when two agencies have concurrent jurisdiction and one acts in a matter, the other should defer in the interest of avoiding possible conflicting results. This principle has been applied with approval by other jurisdictions. See e.g., City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (N.J. 1980) (applying principles of "administrative comity," which requires "deference to cognate tribunals," and is "designed to assure that a controversy, or its most critical facets, will be resolved by the forum or body which, on a comparative scale, is in the best position by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate the matter.").
Moreover, we infer from the ALJ's order that she recognized that there are statutory and regulatory reasons for the Director's exercise of jurisdiction over wage continuation plans. Section 8-42-124(2)(a), C.R.S. 2005 provides that an employer may implement a "wage continuation plan" to compensate injured workers who sustain temporary disability and conditions those plans on the approval of the Director:
Any employer who is subject to the provisions of articles 40 to 47 of this title and who, by separate agreement, working agreement, contract of hire, or any other procedure, continues to pay a sum in excess of the temporary total disability benefits prescribed by articles 40 to 47 of this title to any employee temporarily disabled as a result of any injury arising out of and in the course of such employee's employment and has not charged the employee with any earned vacation leave, sick leave, or other similar benefits shall be reimbursed if insured by an insurance carrier or shall take credit if self-insured to the extent of all moneys that such employee may be eligible to receive as compensation or benefits for temporary partial or temporary total disability under the provisions of said articles, subject to the approval of the director.
Section 8-42-124(5) requires the employer to notify the division of an employee's eligibility to receive such payments, and requires the employer to file any information required by the Director for approval of direct payments.
The Director has promulgated a rule of procedure to implement § 8-42-124. Rule of Procedure 1-8 provides that:
(A) An employer who wishes to pay salary or wages in lieu of temporary disability benefits may apply to the Director for authorization to proceed pursuant to § 8-42-124(2), C.R.S.
(B) The application to the Director shall contain the following information:
(1) a reference to the contract, agreement, policy, rule or other plan under which the employer wishes to pay salary or wages in excess of the temporary disability benefits required by the act, and
(2) a description of the employees covered by the application and a statement that these employees will not be charged with earned vacation leave, sick leave, or other similar benefits during the period the employer is seeking a credit or reimbursement.
© An employer who has received approval from the Director to proceed under § 8-42-124(2), C.R.S., shall indicate on the employer's first report of injury form whether the claim is subject to § 8-42-124(2), C.R.S.
We note that it is questionable whether the ALJ was correct in concluding that the Director's exercise of jurisdiction over wage continuation plans actually deprived the ALJ of jurisdiction to act in the matter. Section 8-47-107, C.R.S. 2005 grants broad authority to the Director to adopt rules governing procedures and hearings relative to the administration of articles 40 to 47 of title 8. However, in 1994 (and 2005) that provision was amended to provide that "[n]o such rule shall limit the jurisdiction of an administrative law judge in the office of administrative courts to hear and decide all matters arising under articles 40 to 47 of this title." We nonetheless find no error in the ALJ's determination that the matter was more appropriately resolved by the Director.
Further, we view the ALJ's order declining to adjudicate this matter as not presently final and reviewable. As noted, the effect of the order is to defer to the Director regarding matters involving § 8-42-124 and wage continuation plans. Of course, we should not be understood to be ruling that, consistent with due process principles, the claimant is not entitled to have his right to benefits and compensation heard before a fact finder with jurisdiction to act. The claimant's recourse under the ALJ's order is to seek relief from the Director. That procedural avenue may result in the relief the claimant seeks, or may lead to an order that is final and appealable. In any event, the ALJ's order deferring jurisdiction to the Director does not require any party to pay a penalty or benefits, or finally deny the claimant a penalty or benefits. The order merely declines to hear the dispute and defers the matter to an agency with concurrent jurisdiction, that has not only acted in the matter, but has also regulated the general area. Accordingly, the ALJ's order is not presently final and reviewable.
IT IS THEREFORE ORDERED that the petition to review the ALJ's order dated August 12, 2005, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Kim Merle, Aurora, CO, United Airlines, Denver International Airport, Denver, CO, Jenny Beck, Gallagher Bassett Services, Inc., Englewood, CO, John A. Steninger, Esq., Denver, CO, (For Claimant).
Lynn P. Lyon, Esq., Denver, CO, (For Respondent).