W.C. No. 4-396-470Industrial Claim Appeals Office.
December 29, 1999
ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) which awarded temporary partial disability benefits commencing October 8, 1998. We dismiss the petition to review without prejudice.
The claimant sought temporary partial disability benefits after he was separated from employment on October 8, 1998. The ALJ found the claimant was entitled to temporary partial disability benefits “at the rate of two-thirds of the difference between $656.80 and the wage(s) he earned at his other employment.” The ALJ also stated that, “if the parties are unable to agree on the appropriate amount(s) of temporary partial disability,” the claimant “will need to set this matter for hearing in order to determine said amount(s).” The ALJ’s failure to determine the amount of temporary partial disability benefits is apparently based on the respondents’ inability to obtain wage records prior to the hearing. (Tr. pp. 4, 21).
Pursuant to § 8-43-301(2), C.R.S. 1999, a party “dissatisfied with an order” may file a petition to review any order which requires a party to pay a benefit or penalty, or denies the claimant any benefit or penalty. Orders which do not award or deny benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Thus, a determination that the respondents were liable for penalties was held to be interlocutory absent a determination of the amount of penalties to be assessed. United Parcel Service, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0540, June 24, 1999). Similarly, we have held that an award of temporary total disability benefits is not reviewable unless the record contains an admission for, or a determination of, the claimant’s average weekly wage. Lewis v. Kirk Saunders d/b/a Saunders of Colorado, W.C. No. 4-225-609
(January 20, 1998).
Here, the ALJ’s order does not award or deny any temporary partial disability benefits. To the contrary, the ALJ’s order merely determines that the respondents are liable for temporary partial disability benefits in the event the claimant successfully establishes an actual wage loss. Neither does the record establish that the parties ever agreed concerning the claimant’s earnings subsequent to October 8. Therefore, the order is interlocutory and the respondents’ petition to review must be dismissed without prejudice.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated August 17, 1999, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE An action to modify or vacate this Order may be commencedin the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for writ of certiorari with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1999 Cum. Supp.)
Copies of this decision were mailed December 29, 1999 to the following parties:
Hector Alvarez, 520 Inca St., Denver, CO 80204
Community Support Providers, 53rd St., Bordentown, NJ 08505-1119
Community Support Providers, Gallagher Bassett Services, Attn: Debbie Lathram, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Anne Smith Myers, Esq., and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy