Opinion
W.C. No. 4-349-211
October 21, 1999
ORDER
The respondents filed a Petition to Review an order of Administrative Law Friend (ALJ) dated December 7, 1998. The respondents contend the ALJ erred in finding that they are liable for workers' compensation benefits due on account of the claimant's injury. We dismiss the Petition to Review for lack of a final order.
Under § 8-43-301(2), C.R.S. 1999, a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a 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). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986); Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (order requiring payment of benefits "to which the claimant may be entitled" was not yet reviewable).
Here, the ALJ determined the claimant sustained her burden to prove that her injury arose out of and in the course of her employment for Wal Mart Stores, Inc. The ALJ also awarded temporary total disability benefits for June 30, July 1 and July 2, 1997. However, there is no stipulation concerning the claimant's average weekly wage and the record indicates that average weekly wage was not before the ALJ for adjudication. ( See Tr. pp. 4-6). Without a determination of average weekly wage, the award of temporary total disability benefits is interlocutory and not currently subject to review.
We note the ALJ also denied temporary total disability benefits for the period July 3, 1997 to August 28, 1998. However, the respondents do not dispute that portion of the ALJ's order and the claimant has not filed a petition to review. Consequently, we must dismiss the respondents' petition to review for lack of a final order. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (an order may be final in part and interlocutory in part). Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents' Petition to Review the ALJ's order dated December 7, 1998, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 21, 1999 the following parties:
Stephanie Hickey, 1230 W. 6th Ave., Broomfield, CO 80020
Wal Mart Stores, Inc., 300 Waneka Pkwy., Lafayette, CO 80026-8823
Jon Causseaux, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
Insurance Company of the State of Pennsylvania, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Jack Taussig, Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: le