IN THE MATTER OF THE CLAIM OF AARON BACA, Claimant, v. ALSTOM, INC., and Employer, ZURICH AMERICAN INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-741-529.Industrial Claim Appeals Office.
August 3, 2011.

ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated March 17, 2011 that granted the claimant’s motion to strike the Final Admission of Liability (FAL) filed by the respondents and ordered the claimant to return to Dr. Dallenbach for determination of permanent medical impairment caused by the work injury. We dismiss the petition to review without prejudice.

The claimant suffered an admitted work injury on November 8, 2007. After 18 months of treatment the claimant still had not been placed at maximum medical improvement (MMI) by his authorized treating physician, Dr. Dallenbach. The insurer requested a Division Independent Medical Examination (DIME). The DIME physician determined that the claimant was at MMI as of April 28, 2009. The DIME physician further determined that the claimant had no permanent medical impairment as a result of the work injury.

The Division of Workers’ Compensation issued a Notice of Completion of the DIME and instructed the insurer to file an admission of liability or file an application for hearing. The insurer, on November 10, 2009, filed a FAL terminating temporary total disability (TTD) benefits and denying liability for any permanent disability benefits. On January 27, 2011 the claimant filed a motion to strike the FAL.

The ALJ, while noting that there was no express statutory language prohibiting an 18-month DIME from expressing an opinion on permanent impairment, nevertheless

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determined that the legislature did not intend to modify the existing procedure by which the ATP makes the initial determination of impairment even after an 18-month DIME establishes MMI. The ALJ found that the notice in the FAL was misleading because permanent disability had not yet been determined. Consequently, the ALJ granted the claimant’s motion to strike the FAL. The respondents bring this appeal, contending that the ALJ erred in determining that the 18-month DIME rule precluded the respondents’ FAL. Respondents also argue that the ALJ erred in determining that the claimant had not waived his right to challenge the validity of the FAL.

We must first address the claimant’s contention that the order issued by ALJ Stuber is interlocutory. The claimant points out that the order merely granted the claimant’s motion to strike the FAL and directed the claimant to return to Dr. Dallenbach for determination of permanent medical impairment. Further, the order otherwise reserved all other matters for future determination. The ALJ in his order specifically stated that his decision did not grant or deny a benefit or a penalty and so it may not be subject to a Petition to Review. In his order, ALJ Stuber directs the parties’ attention to § 8-43-301(2) C.RS.

Section § 8-43-301(2), C.R.S. provides that a dissatisfied party may file a petition to review any order which requires a party to pay benefits or a penalty or denies the claimant any benefit or penalty. Thus, an order must satisfy the finality criteria set forth in that statute or we lack jurisdiction. Orders which do not require payment of benefits or penalties, or deny the claimant either, are interlocutory and not subject to review Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989).

The respondents argue that if ALJ Stuber’s order is affirmed, the respondents will be forced to withdraw their FAL and once the FAL is withdrawn the claimant will be awarded TTD benefits. Therefore, the respondents argue that the order directly awards benefits to the claimant. We are persuaded that the ALJ did not award any specific benefits or compensation. Accordingly, in our view, the order is not presently final and reviewable at this time.

Generally, orders are not final if they do not fully dispose of the issue presented, including the amount of benefits to be paid Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999); United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo. App. 1999). In view of these principles, we have held that general awards of medical benefits are not final and reviewable absent a ruling concerning the respondents’ liability for specific treatment. See, e.g., Vicic v. Wal Mart Stores, Inc., W. C. No. 4-610-968 (May 17, 2005); Tooley v. Johnson and Sons Trucking, W.C. No. 4-376-713 (January 28, 2000).

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The respondents may be correct that the order of ALJ Stuber striking the FAL will have the practical effect of subjecting them to liability for TTD benefits. However, as noted by the ALJ, the issue of payment of any TTD benefits was not before him. Consequently the order striking the FAL did not fully dispose of the issue of the amount of any benefits to be paid, including TTD benefits.

In our view, under the circumstances the striking of the FAL, which allows the claim to go forward, is analogous to granting a petition to reopen without awarding specific benefits. The Panel has held that orders which merely reopen a claim without awarding specific benefits are interlocutory and not reviewable. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo. App. 1986). Similarly, an order which determines a claim to be compensable in many cases has the practical effect of resolving the respondents’ liability for benefits. Nevertheless, the Panel has 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). Such cases are analogous to the present situation where the claim can now proceed, but without the award of any benefits. The order is not final and reviewable absent a ruling on the respondents’ liability for specific benefits.

IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated March 17, 2011 is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Dona Rhodes

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AARON BACA, 1201 PALO ALTO, PUEBLO, CO, (Claimant).

ALSTOM, INC., WINDSOR, CT, (Employer).

ZURICH AMERICAN INSURANCE COMPANY, Attn: ANGELA FAISON/DAVE REED, C/O: GALLAGHER BASSETT SERVICES, ENGLEWOOD, CO, (Insurer).

STEVEN U. MULLENS, PC, Attn: KIMBERLY ROEPKE WHITING, ESQ., PUEBLO, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: CHARLOTTE VEAUX, ESQ./BRAD J. MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).

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