Opinion
W.C. No. 4-204-802
June 16, 1997
ORDER
This matter has been transmitted to us pursuant to the respondent's Petition for Review of an order of Administrative Law Judge Wheelock (ALJ), dated March 21, 1997. We dismiss the petition to review without prejudice.
This claim was previously before us. In an order dated August 23, 1996, the ALJ determined that the claimant developed centralized reflex sympathetic dystrophy (RSD) as a direct and natural consequence of a 1990 industrial accident with the respondent. The ALJ also determined that the claim was not barred by the statute of limitations. Therefore, the ALJ concluded that the respondent is liable for the claimant's RSD. However, the August 23 order did not award or deny any specific benefits, and reserved all other issues for future determination. As a result, we concluded that the August 23 order was interlocutory and not subject to review.
Thereafter, the ALJ entered the order of March 21, 1997, in which she incorporated her August 23 Findings of Fact and Conclusions of Law. The March 21 order also required the respondent to pay temporary total disability benefits commencing August 1, 1995.
We conclude that the March 21, 1997 is not a final order. Therefore, we dismiss the respondent's April 1 Petition for Review.
As we previously stated, § 8-43-301(2), C.R.S. (1996 Cum. Supp.) 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 respondent's 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. Therefore, the amount of the temporary disability award has not been determined. Consequently, the March 21 order does not award or deny any "benefit" within the meaning of § 8-43-301(2), and we lack jurisdiction to consider the respondent's substantive arguments concerning the August 23 order. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
We further note that the administrative hearing file which was transmitted to us does not contain the August 23 order. Therefore, if the matter is subsequently transmitted to us for review of the ALJ's August 23 Findings of Fact and Conclusions of Law, it is vital that the appellate record include the August 23 order.
IT IS THEREFORE ORDERED that the respondent's Petition for Review dated April 1, 1997, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona HalseyNOTICE 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 June 16, 1997 to the following parties:
Virginia Wilson, 602 Collins Ave., Pueblo, CO 81005
Sue Comeau, U.S. West Communications, Workers Compensation, 1801 California, Rm. 3240, Denver, CO 80202
Carol A. Finley, Esq., 111 S. Tejon, Ste. 720, Colorado Springs, CO 80903 (For the Respondent)
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
By: ________________________________