W.C. No. 4-326-355Industrial Claim Appeals Office.
July 16, 2003
ORDER
Respondents Merritt Equipment Company (Merritt), and its insurer, Fireman’s Fund Insurance Company (collectively Fireman’s Fund respondents), seek review of an order of Administrative Law Judge Jones (ALJ) which awarded temporary disability benefits and reasonable and necessary medical benefits. We dismiss the petition to review without prejudice.
The primary issue in the case is whether the claimant’s neck condition, diagnosed as C6-7 syndrome with radiculopathy, is causally-related to an injury which the claimant sustained at Merritt on January 30, 1997, or to his subsequent employment with respondent D D Metal Products (D D) commencing in February 1998. In this regard, we note the Fireman’s Fund respondents filed a Final Admission of Liability in May 1997 after the treating physician, Dr. Holmboe, released the claimant to regular duty. In August 2000, the claimant filed a petition to reopen based on an alleged worsened condition. The claimant sought temporary disability benefits and treatment for the cervical condition.
The ALJ credited the claimant’s testimony that the welding work which the claimant performed at Merritt was substantially heavier than that performed at D D, and that the need for lighter work caused the claimant to terminate his employment with Merritt in January 1998. The ALJ also credited the claimant’s testimony that he has experienced tightness in his neck since the 1997 injury at Merritt, and that the symptoms did not substantially abate after he left employment with D D in February 2000. The ALJ also credited medical opinion that the 1997 industrial injury, not the employment at D D, was the most probable cause of the claimant’s neck condition.
Under these circumstances, the ALJ found the evidence, including the claimant’s testimony, established the claimant suffered no aggravation of his neck condition while employed by D D, but instead the claimant’s symptoms are the result of the “natural progression” of the 1997 injury. The ALJ further found that the claimant left employment with D D because he was no longer able to perform the work. Thus, the ALJ determined the Fireman’s Fund respondents are liable for temporary total disability benefits from the date the claimant left employment with D D. The ALJ also found the Fireman’s Fund respondents are liable for “reasonable and necessary” medical benefits.
On review, the Fireman’s Fund respondents contend the evidence does not support the ALJ’s determination that the claimant’s disability and need for treatment was caused by the 1997 injury at Merritt. Instead, they argue the claimant sustained a compensable injury while employed by D D. The Fireman’s Fund respondents also challenge the ALJ’s application of the burden of proof and the sufficiency of the evidence to support the award of temporary disability and medical benefits. We conclude the order is not currently final and reviewable.
Section 8-43-301(2), C.R.S. 2002, 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 any benefit or penalty, are interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, an award must determine the amount of benefits or penalties to be awarded before it is considered final and reviewable United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). In view of these principles, we have held an award of temporary disability benefits is not final and reviewable until the average weekly wage, and hence the amount of temporary disability benefits to be awarded, has been determined. Lindsey v. Stand-By Personnel, W.C. No. 4-266-504 (June 27, 1996); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Similarly, we have held that awards of “reasonable and necessary” medical benefits which do not require payment of specific medical benefits are not final and reviewable. Tooley v. Johnson and Sons Trucking, W.C. No. 4-376-713
(January 28, 2000).
The ALJ’s order does not determine the claimant’s average weekly wage. Instead, the order merely notes the claimant’s earnings at the time he left employment with Merritt approximately one year after the injury, and reserves all issues not decided. The Final Admission filed by the Fireman’s Fund respondents did not admit for an average weekly wage since the admission was for medical benefits only, and the record does not reflect the parties reached a stipulation concerning the claimant’s average weekly wage. Consequently, the ALJ’s order is interlocutory with respect to temporary disability benefits because the claimant’s average weekly wage has not yet been determined, and the Fireman’s Fund respondents have not been ordered to pay any specific amount of temporary disability benefits.
Similarly, the order is interlocutory with respect to medical benefits. Although there is evidence concerning the claimant’s receipt of medical benefits and the need for future treatment, the ALJ did not determine which, if any, of the medical benefits the Fireman’s Fund respondents are liable to pay. Significantly, the parties presented evidence concerning whether or not the treatment received by the claimant after the filing of the final admission of liability was authorized. However, the ALJ made no ruling on this question and it is not possible to determine if the ALJ concluded that the Fireman’s Fund respondents are liable for any specific treatment. Thus, the order does not award any particular medical benefits and is currently interlocutory.
IT IS THEREFORE ORDERED that the Fireman’s Fund respondents’ petition to review the ALJ’s order dated July 10, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Dona Halsey
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 review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 16, 2003 to the following parties:
Douglas W. Younger, 6500 E. 88th Ave., #29, Henderson, CO 80640
Stan Rasmussen, Merritt Equipment Company, 9339 Highway 85, Henderson, CO 80640
D D Metal Products, 2305 W. Midway Blvd., Broomfield, CO 80020
Fireman’s Fund Insurance Company, c/o Bonnie Bates, Crawford
Company, 9200 E. Panorama Cir., #160, Englewood, CO 80112
Commercial Casualty Insurance Company, c/o Michael McKenna, Sierra Insurance Group, P. O. Box 6597, Englewood, CO 80155-6597
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
David J. Dworkin, Esq., and Margaret Bauder Garcia, Esq., 3900 E. Mexico Ave., #1300,
Denver, CO 80210 (For Respondents Merritt Equipment Company and Fireman’s Fund Insurance Company)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondents D D Metal Products and Commercial Casualty Insurance Company)
By: A. Hurtado