IN THE MATTER OF THE CLAIM OF SIMON BITTON, Claimant, v. WALMART, Employer, and CLAIMS MANAGEMENT, INC., Insurer, Respondents.

W.C. No. 4-802-804.Industrial Claim Appeals Office.
January 26, 2011.

ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated September 22, 2010, that found the claim compensable and ordered the respondents to pay the claimant all benefits he is entitled to under the Workers’ Compensation Act of Colorado. We dismiss the petition to review without prejudice.

A hearing was held on the sole issue of the compensability of a claimed industrial injury alleged by the claimant to have occurred on June 29, 2009. The ALJ found the claim to be compensable, but reserved all other issues for future decision. The respondents appealed and argue that the ALJ erred as a matter of law in concluding that the claimant’s testimony was credible and that the claimant had presented sufficient evidence to demonstrate that he sustained a compensable industrial injury. However, we conclude that the order is not final and, therefore, not presently reviewable.

Under § 8-43-301(2), C.R.S., a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a 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 review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo. App. 1989) (order may be partially final and reviewable and partially interlocutory) CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo. App. 1986).

Page 2

We have previously held that orders which only determine compensability are interlocutory. See Gonzales v. Public Service Co. of Colorado, W.C. No. 4-131-978 (May 14, 1996); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Here, although the ALJ determined that the claimant had sustained a compensable injury he did not award any specific benefits or compensation. Accordingly, the order is not presently final and reviewable at this time.

IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s dated September 22, 2010 is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________

John D. Baird

____________________________________

Thomas Schrant

Page 3

SIMON BITTON, 1521, COLORADO SPRINGS, CO, (Claimant), WALMART, Attn: HUMAN RESOURCES, 1 COLORADO SPRINGS, CO, (Employer), CLAIMS MANAGEMENT, INC., Attn: SERENA LOUDERMILK, BENTONVILLE, AR, (Insurer), MCDIVITT LAW FIRM, PC, Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).

CLIFTON, MUELLER BOVARNICK, PC, Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).

Page 1