Opinion
W.C. No. 4-377-088
January 28, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ), dated May 30, 2001. We dismiss the Petition to Review without prejudice and remand the matter for further proceedings on the claimant's request for costs and attorney fees.
On October 13, 1997, the claimant suffered a compensable injury. A hearing was scheduled for April 25, 2001, on the issues of temporary total disability benefits, average weekly wage, disfigurement benefits and medical benefits.
In an order dated May 30, the ALJ awarded disfigurement benefits and directed the respondents to pay for reasonable and necessary medical treatment. The ALJ also found the claimant is entitled to temporary total disability benefits commencing June 25, 1999. However, the found neither party presented sufficient evidence to determine the average weekly wage. Therefore, the ALJ reserved the issue of average weekly wage for future determination. The respondents timely appealed the ALJ's order.
On June 11, 2001, the claimant's attorney requested the ALJ to issue a corrected order which determined the average weekly wage and, thus, the claimant's temporary disability rate. In an order dated June 20, 2001, the ALJ determined she was unable to make sense of the incomplete wage records submitted at the hearing and, therefore, the ALJ refused to issue a corrected order.
I.
The respondents' contend the ALJ's findings of fact are not supported by the evidence and the ALJ's findings do not support the award of temporary total disability benefits under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Therefore, the respondents request we set aside the award of temporary total disability benefits.
As we have previously stated, § 8-43-301(2), C.R.S. 2001 only allows us to review orders which require "any party to pay a penalty or benefits or denies a claimant a benefit or penalty." See Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An order which determines the employer's liability for benefits but does not determine the amount of benefits is not an order requiring the payment of benefits. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). For example, in CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986), an order was entered which awarded the claimant permanent total disability benefits. However, the order did not determine whether the Subsequent Injury Fund was liable for a portion of the benefits, and thus, the order did not determine the amount of benefits to be paid by the employer. Under these circumstances, the Court of Appeals held that the order was not was not a final order. 731 P.2d at 146. Similarly, in Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) an order requiring the payment of benefits "to which the claimant may be entitled" was held to be interlocutory.
Accordingly, we have repeatedly concluded that an award of temporary disability benefits is not subject to review unless the order contains findings to determine the rate of the claimant's temporary disability benefits. See Orozco v. Sno-White Linen and Uniform Rental Inc., W.C. No. 4-159-681, June 29, 1995; Theobald v. Fort Logan Mental Health Institute, W.C. No. 4-178-865, August 23, 1994. We adhere to our prior conclusion.
Here, the ALJ determined the respondents' liability for temporary disability benefits. However, there is no admission or stipulation concerning the claimant's average weekly wage. Nor did the ALJ determine the claimant's average weekly wage. To the contrary, the ALJ expressly reserved the issue for future determination. Therefore, the amount of the temporary disability award has not been determined. Under these circumstances, the ALJ's award of temporary disability benefits does not award or deny any "benefit" within the meaning of § 8-43-301(2), and we lack jurisdiction to consider the respondents' substantive arguments on the issue of temporary disability benefits. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); Oxford Chemicals Inc., v. Richardson, supra.(order may be partially final and partially not final). Consequently, we must dismiss the respondents' Petition to Review without prejudice.
II.
The claimant's Brief in Opposition to the Petition to Review alleged the respondents' appeal was taken in bad faith in view of the ALJ's refusal to alter her prior order reserving the issue of average weekly wage for future determination. Therefore, the claimant requests an award of attorney fees and costs under § 8-43-301(14), C.R.S. 2001.
Section 8-43-301(14) provides the signature of an attorney on a petition to review or brief constitutes a certification by the attorney that the petition to review or brief is "well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose" such as harassment, delay, or unnecessarily increasing the cost of litigation.
Here, the respondents have not had an opportunity to reply to the claimant's request for attorney fees and costs. Further, the request for attorney fees and costs may involve issues of fact concerning counsel's motivation for filing the petition to review. We lack statutory authority to resolve issues of fact. Section 8-43-301(8), C.R.S. 2001. Consequently, we conclude it is appropriate to remand the matter to the ALJ with instructions to conduct appropriate proceedings, including a hearing if necessary, to resolve the claimant's request for attorney fees and costs. However, we should not be understood as expressing any opinion concerning whether or not it is appropriate to award attorney fees and costs in this case.
IT IS THEREFORE ORDERED that the respondents' Petition for Review the ALJ's order dated May 30, 2001, is dismissed without prejudice.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ for further proceedings on the claimant's request for attorney fees and costs.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 writ of certiorari 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. (1996 Cum. Supp.).
Copies of this decision were mailed January 28, 2002 to the following parties:
Angelica Synnott, 10055 W. Dartmouth Ave., #E401, Lakewood, CO 80227
Russ Miller, Merrill Lynch, 9601 S. Meridian Blvd., Englewood, CO 80112
Myra Jelinek, Travelers Indemnity Company of Illinois, P. O. Box 173762, Denver, CO 80217-3762
William J. Macdonald, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Trecia L. Sigle, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
BY: A. Pendroy