In re Gattav.Office Depot, W.C. No

Industrial Claim Appeals OfficeNov 14, 2007
W.C. No. 4-702-780. (Colo. Ind. App. Nov. 14, 2007)

W.C. No. 4-702-780.

November 14, 2007.


ORDER

The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated July 2, 2007. We dismiss the Petition to Review without prejudice.

The ALJ found that the claimant was involved in a compensable motor vehicle accident on September 24, 2006, that caused a temporary aggravation of her preexisting cervical condition. The ALJ denied the request for temporary total disability benefits.

On review, the claimant contests only the ALJ's finding that the September 24, 2006, accident caused a "temporary aggravation" of her preexisting cervical condition. The claimant contends that the finding was gratuitous and could deprive the claimant of her right to ask for a Division-sponsored independent medical examination (DIME) on the issue of permanency of the cervical condition. We conclude that the contested portion of the ALJ's order is not currently subject to review.

Section 8-43-301(2), C.R.S. 2007 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 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. 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). In general, orders related to DIME requests are not final. See Ortiz v. Industrial Claim Appeals Office of State, 81 P.3d 1110, (Colo.App. 2003) (court of appeals and panel lacked jurisdiction to consider whether the ALJ properly determined that claimant's DIME was not properly obtained); Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000); Lozano v. Front Range Rebar Co., Inc., W.C. No. 4-285-320 (August 3, 1998).

The ALJ's order is "final" on the issues of whether the claimant sustained an injury arising out of the course and scope of her employment, whether the claimant was entitled to temporary total disability benefits for a closed period of time and whether the claimant was responsible for her termination of employment such that her wage loss was not attributable to her industrial injury. However, the claimant does not dispute these portions of the order. Rather, the claimant contends that the contested portion of the order, that the claimant's neck injury is only temporary, is not binding on a DIME to determine her rating, what parts of the body are entitled to a rating and the issue of MMI. The claimant does not request any modification of the award, and merely requests that we strike the disputed finding and conclusion.

Here the ALJ was not asked to adjudicate the claimant's entitlement to a DIME, or to award permanent disability benefits. Rather, the claimant argues that the finding that the claimant suffered a temporary aggravation of her preexisting cervical condition, may have an impact the DIME process. The requested relief is hypothetical and not properly postured for appellate review. Cf. Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (where resolution of issue cannot have any effect upon an existing controversy, issue is moot). Consequently, we currently lack jurisdiction to review the contested portion of the ALJ's order and must dismiss the claimant's petition to review without prejudice. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); Knight v. Albertson's, W. C. No. 4-239-186 (March 02, 1999).

IT IS THEREFORE ORDERED that the ALJ's order dated July 2, 2007 is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Curt Kriksciun

____________________________________ Thomas Schrant

AMELIA GATTA, 1450 SANDALWOOD DRIVE, APT J, COLO SPGS, CO, (Claimant)

OFFICE DEPOT, Attn: ELLEN OSBORN, DELRAY BEACH, FL, (Employer)

SEDGWICK CLAIMS MGMT SERVICES, INC., Attn: JASON OUSTON, GREENWOOD VILLAGE, CO, (Insurer)

HEUSER HEUSER, L.L.P., Attn: BARKLEY D HEUSER, ESQ., COLO SPGS, CO, (For Claimant)

MCELROY, DEUTSCH, MULVANEY CARPENTER, LLP, Attn: KRISTEN A CARUSO/JEFFREY M ERICKSON, DENVER, CO, (For Respondents)