Opinion
W.C. No. 3-863-341
September 25, 1997
ORDER
Claimant Dasha Marie Stanley (Dasha), seeks review of an order of Administrative Law Judge Stuber (ALJ), which apportioned workers' compensation death benefits between her, Crystal Rose Stanley (Crystal), and Lanette Rae Stanley (Lanette). We dismiss the petition to review without prejudice.
The ALJ found that at the time of the decedent's death, Dasha was a wholly dependent child, "and remained so until she turned 18 years of age on July 7, 1996." At that time, Dasha was a full-time student in an accredited school within the meaning of § 8-41-501(1)(c), C.R.S. 1997. It is also undisputed that Dasha has been severely disabled from birth.
The ALJ further determined that claimants Crystal and Lanette were wholly dependent children under § 8-41-501(1)(b). The ALJ found that Crystal will probably attend college. (Lanette has subsequently died.)
Under these circumstances, the ALJ apportioned the death benefits equally between the three children. However, the ALJ declined to award Dasha "lifetime benefits" under § 8-41-502, C.R.S. 1997, on the theory that she is permanently disabled. The ALJ also declined to order that all benefits be paid to Dasha as the other children cease to be entitled. See § 8-42-120, C.R.S. 1997. In this regard, the ALJ stated that there are "too many variables that now exist to make an equitable permanent determination of division of future benefits among these children." Thus, the ALJ reserved the issues of "future determination of dependency status and apportionment of death benefits in the event of a change in dependency status."
On review, Dasha argues that the ALJ erred in failing to award her lifetime benefits, and in failing to order that she is entitled to all benefits when the other dependents cease to be legally entitled. However, we conclude that the disputed portions of the ALJ's order are not currently subject to review.
Pursuant to § 8-43-301(2), C.R.S. 1997, a party dissatisfied with an order 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. 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). Moreover, an order may be partially reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Here, Dasha has no dispute with the ALJ's award of benefits. She makes no arguments that the ALJ improperly determined dependency, or that the apportionment of benefits is improper.
To the contrary, Dasha's only disagreement is with the ALJ's decision to reserve judgment concerning when dependency will change, and how to apportion benefits when that occurs. However, the ALJ has entered no order concerning these inchoate issues, and therefore, we currently lack jurisdiction to consider them. Oxford Chemicals, Inc. v Richardson, supra.
The claimant relies on Western Gas Processing Co. v. Industrial Claim Appeals Office, 797 P.2d 823 (Colo.App. 1990), for the proposition that the ALJ's order is now subject to review. In that case, the ALJ entered an order which had the effect of terminating dependency benefits at the time the dependent children reached the age of 18. The mother appealed on behalf of the children, arguing that termination at age 18 was not proper since the children might then attend an accredited school. We agreed with this argument and modified the order.
The respondents sought review of our order arguing that the ALJ correctly terminated benefits at age 18 because their dependency status was legally "fixed as of the date of injury," and could never change. The Court of Appeals upheld our order, and stated that the "issue of benefits was properly raised by the dependents at this time, since the order being reviewed was a final order from which review could be sought." Id. at 825.
There is a significant difference between the facts in the Western Gas case and those present here. In Western Gas, the ALJ entered a specific order which would have terminated the children's death benefits on a date certain. Thus, the ALJ's order had the effect of "denying" benefits, and the claimants justifiably appealed that denial. We modified the ALJ's order, and the respondents appealed to the court arguing that we erred in permitting payments to continue beyond age 18.
In this case, the ALJ has not purported to enter any order concerning the date on which death benefits may terminate. He has merely reserved this issue for future determination, and there is no final order which adjudicates the parties' future rights.
IT IS THEREFORE ORDERED that the petition to review the ALJ's order dated November 19, 1996, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed September 25, 1997 to the following parties:
Dasha Marie Stanley, Cynthia Carlson, 1512 Friar Tuck Court, Lafayette, CO 80026
Crystal Rose Stanley, Rosalee Sandoval, 4540 E. 72nd Ave., Commerce City, CO 80601
American Shippers, 10550 E. 54th Ave., Denver, CO 80239
Insurance Co. of North America, P.O. Box 2941, Greenwood Village, CO 80150-0141
Kathleen M. Cronan, Esq., 425 S. Cherry St., Ste. 120, Denver, CO 80222 (Guardian ad litem for Crystal Rose Stanley and Lanette Rae Stanley)
Elsa Martinez Tenreiro, Esq., 700 Broadway, Ste. 1101, Denver, CO 80203 (Guardian ad litem for Dasha Marie Stanley)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For Decedent)
W. Berkeley Mann, Jr., Esq., 4582 S. Ulster St., Ste. 906, Denver, CO 80237 (For Respondents)
By: _______________________________