IN THE MATTER OF THE CLAIM OF DEBRA DANIELS, Claimant, v. US AIRWAYS GROUP, INC., Employer, and AMERICAN HOME ASSURANCE, Insurer, Respondents.

W.C. No. 4-695-093.Industrial Claim Appeals Office.
November 2, 2010.

ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Krumreich (ALJ) dated June 22, 2010, that determined the insurer was entitled to credit Social Security Disability (SSDI) benefits against any future compensation that might become due under the claim. We dismiss without prejudice the claimant’s petition to review.

The claimant suffered an industrial injury to her low back on June 1, 2006. The ALJ in an order dated March 29, 2010 ordered the insurer to pay for certain medical benefits and denied the claimant’s request for other medical benefits. The claimant filed a petition to review contending the ALJ failed to address an issue of overpayment that had been endorsed as an issue for hearing. The ALJ issued a Supplemental Order dated June 22, 2010 in which he determined that the claimant became entitled to monthly SSDI benefits effective January 2007 and consequently the claimant had been overpaid temporary total disability benefits by insurer in the amount of $14,733.35. The insurer did not request that the claimant repay the amount of the overpayment at the time of the hearing. The ALJ determined that the insurer was entitled to credit this amount against any future compensation due the claimant under the claim.

On appeal the claimant contends the ALJ erred in concluding that the insurer was entitled to a credit of $14,733.35 against any future compensation due and owing under the claim. The claimant does not argue that the respondents are not entitled to an offset; rather, the claimant contends that ALJ erred in his reliance on certain exhibits put into evidence as the basis for the asserted overpayment. The specific relief requested is that we issue an order denying and dismissing the respondents’ asserted overpayment

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referenced in certain General Admissions of Liability. The claimant does not contend that she presently has been denied any specific benefits.

The respondents assert in their Brief in Opposition that subsequent to the order that a Final Admission of Liability was filed and the claimant objected and commenced a Division-sponsored independent medical examination process, preserving her right to contest the calculation of any offset against her permanent partial disability award at such time as the matter becomes ripe in the future.

The Workers’ Compensation Act grants us jurisdiction only to review an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty. . . .” Section 8-43-301(2), C.R.S. Thus, an order must satisfy the finality criteria set forth in that statute or we lack jurisdiction. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989). Instead, interlocutory orders are reviewable when appealed incident to a final order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo. App. 1985). The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997

The ALJ did not enter any final order concerning insurer’s right to an offset against any specific benefits. Accordingly, the ALJ’s order is interlocutory on the offset issue. Se Butts v. D. Grego Trucking Company, W. C. Nos. 4-488-288, 4-483-454 (March 17, 2003).

IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s Supplemental Order dated June 22, 2010 is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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DEBRA DANIELS, COLORADO SPRINGS, CO, (Claimant).

US AIRWAYS GROUP, INC., Attn: JENNIFER RUCINSKI, PHOENIX, AZ, (Employer).

AMERICAN HOME ASSURANCE, Attn: ELLEN SAPP, C/O: AIG DOMESTIC CLAIMS, SHAWNEE MISSION, KS, (Insurer).

STEVEN U. MULLENS, PC, Attn: RICHARD M. LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).

TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KATHLEEN M. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).

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