Opinion
W.C. No. 4-452-628
February 26, 2004
ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated July 7, 2003. We dismiss the appeal for lack of a final order.
The claimant suffered work-related injuries in February 2000. The respondents admitted liability for temporary total and permanent partial disability benefits subject to the $60,000 benefit cap in § 8-42-107.5 C.R.S. 2003.
The claimant then applied for permanent total disability (PTD) benefits. However, the claimant accepted an offer of vocational services from the respondents.
Section 8-40-201(16.5)(a), C.R.S. 2003, defines PTD as the inability "to earn any wages in the same or other employment." Section 8-42-111(3), C.R.S. 2003, states:
"A disabled employee capable of rehabilitation which would enable the employee to earn any wages in the same or other employment, who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability." (Emphasis added).
Section 8-42-111(3) is an affirmative defense to a claim for PTD benefits which is applicable only if the claimant establishes a prima facie case of PTD. Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991); Alvarez v. Amcor Precast, W.C. No. 4-510-350 (December 19, 2003).
The ALJ determined the vocational services offered by the respondents if successful, will enable the claimant to earn wages. Under these circumstances, the ALJ dismissed the request for PTD benefits without prejudice.
Section 8-43-301(2), C.R.S. 2003, provides that 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).
The ALJ did not deny the claim for PTD benefits. Instead, the ALJ determined the issue was premature and therefore, dismissed the request for PTD benefits without prejudice. Furthermore, because the respondents voluntarily offered vocational rehabilitation services and it is undisputed the claimant is barred from additional temporary disability benefits under the provisions of § 8-42-107.5, the ALJ's order does not require the payment of any specific benefit or penalty within the meaning of § 8-42-301(2). Therefore, the ALJ's order is interlocutory and not currently reviewable. 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 July 7, 2003, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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. 2003. 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 order were mailed to the parties at the addresses shown below on February 26, 2004 by A. Hurtado.
Juan J. Monroy a/k/a Armando Perez, 330 Fairway South, Colorado Springs, CO 80906
Construction Associates, c/o David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
Heather Bartlett-Mogg, Liberty Mutual Insurance Company, P. O. Box 3539, Englewood, CO 80155-3539
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80918 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)