Opinion
W.C. No. 4-467-440.
November 25, 2005.
ORDER
The respondents seeks review of an order dated June 20, 2005 of Administrative Law Judge Coughlin (ALJ) that ordered the respondents to provide medical benefits after maximum medical improvement (MMI). The respondents argue that the ALJ erred in entering a finding of fact that in a prior settlement agreement the respondents failed to reserve the right to challenge the claimant's entitlement to certain medical treatment. We dismiss the petition to review without prejudice.
A hearing was held at which the sole issue to be decided was the claimant's entitlement to medical benefits pursuant to Grover v. Industrial Claim Appeals Office, 759 P.2d 705 (Colo. 1988). Specifically, the claimant sought an order awarding medical benefits in the form of massage therapy, acupuncture, and prescription medication.
The ALJ found that the claimant sustained compensable injuries on August 20, 1998 in a motor vehicle accident. She was diagnosed with thoracic outlet syndrome and received medical treatment of various kinds. The ALJ found that the then-current medical regimen of regular massage therapy, acupuncture, and prescription medications provided the most positive results in her recovery. The claimant was reluctant to undergo surgery, which the ALJ found was her only treatment alternative to the massage and acupuncture therapy. In June 2003 the parties stipulated that the claimant had reached maximum medical improvement and that her treatment would continue as maintenance care. The ALJ found that, in entering into the stipulation, the respondents reserved the right to litigate the reasonableness or necessity of surgery, but that they did not reserve the right to litigate the reasonableness or necessity of acupuncture, massage, and prescription medications. The Division approved the written stipulation. The ALJ expressly found that the claimant's then-current treatments of acupuncture, massage, and prescriptions allowed her to function and maintain employment.
The ALJ also addressed the claimant's contention that the prior stipulation constituted law of the case and therefore precluded the respondents from challenging liability for the medical benefits. The ALJ expressly determined that it was unnecessary to resolve that issue, because the claimant had carried her burden of showing that the medical treatment was reasonable and necessary without resort to the stipulation.
On appeal the respondents' sole argument is that the ALJ erred in finding that the stipulation limits the respondents' right to challenge their liability for certain medical care. However, as noted, the ALJ did not rely upon the stipulation in ordering medical benefits to be paid, and the respondents' contention therefore does not address a finding that underlay the ALJ's order to pay benefits. Rather, it advances an argument concerning the possible legal effect of the finding in some future litigation. Because the effect of the finding in future litigation is both hypothetical and speculative, we need not address the argument. There has been no award or denial of benefits in the hypothetical litigation, and any order which we might issue would be merely advisory. See Board of Directors v. National Union Fire Insurance Company, 105 P.3d 653 (Colo. 2005) (courts should refuse to consider uncertain or contingent future matters that suppose speculative injury that may never occur).
Section 8-43-301(2), C.R.S. 2004 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 interlocutory and 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 and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
The finding complained of by the respondents is not a dispositive one in award of benefits, and the respondents merely seek an advisory ruling on the effect of this finding in the event a dispute over these medical benefits later arises. We conclude that this aspect of the order is currently not subject to review. See, e.g., Coleman v. National Product Service, W.C. No. 4-601-676 (July 13, 2005) (contention that ALJ erred in including reservation clause in his order not final and reviewable); Miera v. Lockheed Martin Corp., W.C. No. 4-498-972 (December 31, 2003) (argument that a finding would not preclude future argument to the contrary was not final and reviewable because the argument was hypothetical and depended upon a future controversy).
IT IS THEREFORE ORDERED that the petition to review is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL _____________________ Curt Kriksciun _____________________ Thomas Schrant Eva Taylor, Santa Fe, NM, Kemper Insurance Co., Long Grove, IL, American Motorists Ins. Co., c/o American Guarantee Liability, Denver, CO, American Motorists Ins. Co., c/o American Guarantee Liability, Schaumburg, IL, Lumbermen's Mutual Casualty Pro., c/o Lumbermen's Mutual Casualty, Denver, CO, Daniel B. Galloway, Esq., Denver, CO, (For Claimant).Michael P. Serruto, Esq., Denver, CO, (For Respondents).