Opinion
W.C. No. 4-608-830.
May 6, 2005.
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Jones (ALJ), which awarded temporary total disability (TTD) benefits and medical benefits. We affirm the award of medical benefits and dismiss the petition to review without prejudice as it pertains to TTD benefits.
The principal issues in this case concern the claimant's right to TTD benefits following two separations from post-injury modified employment. The ALJ found the claimant was not responsible for either separation from employment and ordered an award of TTD benefits commencing April 16, 2004. The ALJ also ordered the respondents to pay for medical benefits in the form of epidural steroid injections and a "4i muscle stimulator."
On review, the respondents dispute the award of TTD benefits. They argue the ALJ erred in refusing to admit into evidence an investigator's report concerning the circumstances surrounding the first termination from employment. The respondents also argue the claimant was not entitled to TTD benefits after the first termination because she returned to modified employment in the second job. We conclude the order is not final and reviewable with respect to the TTD issue.
Section 8-43-301(2), C.R.S. 2004, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant any 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 immediate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, an award must determine the amount of benefits to be paid before it is considered final and appealable. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Orders may be partially final and reviewable and partially interlocutory. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
In view of these principles we have previously held that an award of TTD benefits is not final and reviewable absent a determination of the claimant's average weekly wage (AWW). This is true because TTD is based on the AWW, and without such a determination the amount of TTD to be paid cannot be ascertained. Section 8-42-105(1), C.R.S. 2004; Tooley v. Johnson and Sons Trucking, W.C. No. 4-376-713 (January 28, 2000).
Here, the ALJ did not address the claimant's AWW, apparently because neither party raised the issue as one for determination at the hearing. Indeed, the ALJ noted the absence of any evidence on this issue when she observed that there was no basis to award temporary partial disability benefits during the second period of employment because evidence "was not presented that established a wage differential" between the two employments. (Conclusion of Law 5). Moreover, the record does not reflect that the parties stipulated to the AWW, nor does the record contain an admission for the AWW. Because the ALJ reserved for future consideration all issues not resolved by the order, we infer the issue of AWW has not been finally adjudicated. Consequently, the ALJ's order is not final and reviewable with respect to the TTD issue, and as to this issue the respondents' petition to review must be dismissed without prejudice.
The petition to review also alleges the ALJ erred in ordering the respondents to pay for the disputed medical treatment. We perceive no error.
The question of whether particular medical treatment is reasonable and necessary is one fact for resolution by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). Because the issue is factual, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Kroupa v. Industrial Claim Appeals Office, supra.
The respondents' petition to review does not contain any specific argument concerning the allegation that the ALJ erred in awarding the disputed medical benefits. We have reviewed the record, including the reports of Dr. Kesten. These reports provide ample support for the ALJ's decision to award medical benefits, and the fact that some evidence might support a contrary result affords no basis for relief on appeal.
IT IS THEREFORE ORDERED that the respondents' petition to review the ALJ's Supplemental Order dated February 7, 2005, is dismissed without prejudice insofar as it concerns TTD benefits.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Faith Zak, Grandby, CO, Duckwall Alco Discount Stores, Inc., Fraser, CO, Malcolm Chandler, Liberty Mutual Insurance Company, Englewood, CO, Steven J. Picardi, Esq., Arvada, CO, (For Claimant).
Raymond A. Melton, Esq., Denver, CO, (For Respondents).