W.C. No. 4-559-447Industrial Claim Appeals Office.
March 12, 2004
ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) insofar as it determined the claimant’s average weekly wage (AWW). We dismiss the petition to review without prejudice.
This was a fully contested claim which proceeded to hearing on September 11, 2003. The claimant contended he sustained a compensable injury on September 27, 2002, and sought temporary total disability (TTD) benefits commencing September 30, 2002. The claimant’s AWW was also a disputed issue.
On October 4, 2002, the ALJ entered an order finding the claimant sustained a compensable injury on September 27, but failed to prove that the injury resulted in any disability which would entitle the claimant to TTD benefits. The ALJ further found the claimant should be denied TTD benefits because he abandoned his job and was responsible for the termination. Finally, the ALJ found the claimant’s AWW was $680.
The claimant has not appealed the order. However, the respondents filed a petition to review contending the ALJ erred in calculating the AWW. We conclude the order is not final and reviewable with respect to this issue.
Pursuant to section 8-43-301(2), C.R.S. 2003, a party may file a petition to review an “order which requires any party to pay a penalty or benefits, or denies a claimant any benefit or penalty.” This provision constitutes a jurisdictional limitation or our powers, and we may not review orders which do not meet one of the criteria. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003). Further, some determinations contained in an order may be final and reviewable while other determinations are not. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Here, the respondents appeal only the AWW determination. However, under the circumstances of this case, the AWW determination does not deny the claimant any benefits or penalties, nor does it require the respondents to pay any benefits or penalties. The ALJ has not ordered the payment of any TTD benefits, nor any other benefit which might implicate the AWW. Consequently, the issue appealed by the respondents is interlocutory and not subject to immediate review.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated October 4, 2003, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, with service of a copy of the Petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2003.
Copies of this order were mailed to the parties at the addresses shown below on March 12, 2004 by A. Hurtado.
Robert Armstrong, 1388 W. 102nd Ave., Northglenn, CO 80260
Blue Dot Services, Inc. d/b/a Controlling Systems, 1900 W. Bates Ave., Englewood, CO 80110
Pacific Employers Insurance Company, c/o Wes Johnson, ESIS Inc., P. O. Box 911, Portland, OR 97207
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Cheryl A. Martin, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)