W.C. No. 4-350-555Industrial Claim Appeals Office.
May 19, 2000
FINAL ORDER
The respondents, M. Cline Inc. (Cline) and its insurer, the Colorado Compensation Insurance Authority petitioned for review of an order of Administrative Law Judge Mattoon (ALJ), insofar as the ALJ determined the authorized treating physicians. The claimant petitioned for review of the ALJ’s award of temporary disability benefits subject to an “offset.” We dismiss the respondents’ petition to review for lack of a final order, and affirm the award of temporary disability benefits.
The claimant suffered a work-related knee injury on July 8, 1997, while employed by J.B.Q. and Allen Inc. (JBQ). As a result of the injury the claimant has been physically unable to return to work. JBQ directed the claimant to treat with his family physician, Dr. Jackson. JBQ subsequently referred the claimant to Dr. McMillan, who referred the claimant to Dr. Evans. On September 10, 1997, JBQ filed a General Admission of Liability for the payment of temporary total disability benefits, increased by 50 percent for failing to carry workers’ compensation insurance.
JBQ is the uninsured subcontractor of Cline. Consequently, the claimant moved to join Cline as the statutory employer. See §8-41-401(1), C.R.S. 1999. The motion was granted on March 24, 1999. Cline denied liability but referred the claimant to Dr. Olsen for treatment. Thereafter, the claimant applied for a hearing on the issues of temporary disability and medical benefits.
At hearing the respondents stipulated that they are liable for the claimant’s injury. Therefore, the ALJ dismissed the claim against JBQ. The ALJ also determined that the respondents are bound by JBQ’s designation of the treating physicians. Therefore, the ALJ determined that Dr. Jackson, Dr. McMillan and his referrals are authorized to treat the injury. The ALJ also ordered the respondents to pay temporary total disability benefits commencing July 8, 1997. However, to avoid the claimant’s double recovery, the ALJ granted Cline an “offset” for all the temporary disability benefits and penalties paid by JBQ.
I.
The claimant contends the ALJ erroneously allowed the respondents to “offset” their liability for temporary total disability benefits by the payments he received from JBQ. The claimant argues that the money he received from JBQ constituted “charitable” payments from “another source” and there is no statutory “offset” for such payments.
The respondents argue that this is not an issue of “offset.” Rather, the respondents contend that the ALJ has effectively determined they have no liability for temporary disability benefits during the period the claimant received payments from JBQ because the claimant suffered no actual wage loss. We affirm the ALJ’s order but for other reasons.
Where the industrial injury has caused temporary disability which results in an actual wage loss, the claimant is entitled to temporary disability benefits equal to sixty-six and two- thirds of the average weekly wage. Section 8-42-105(1), C.R.S. 1999; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Thus, where the claimant continues to receive his full wages after an industrial injury, he is not entitled to temporary disability benefits, even if the injury is physically disabling.
Here, it is undisputed that the claimant was temporarily totally disabled from performing his regular employment commencing July 8, 1997. Further, there is no finding or assertion that the claimant continued to receive his regular “wage.” Rather, JBQ expressly admitted liability for “temporary total disability benefits.” Therefore, we disagree with the respondents’ assertion that the claimant failed to prove an actual wage loss.
However, we disagree with the claimant’s assertion that the ALJ was compelled to characterize JBQ’s payments as “charitable.” The record contains substantial evidence that JBQ intended the payments to be wage replacement benefits for temporary disability. (See Tr. pp. 133, 151). Further, JBQ admitted liability for the injury as the claimant’s employer and filed an admission for temporary total disability benefits in accordance with the ALJ’s determination of average weekly wage. Under these circumstances, the ALJ reasonably inferred that the payments were made to satisfy the claimant’s entitlement to temporary disability benefits under the Workers’ Compensation Act (Act), and were not gratuitous. (See
Conclusions of Law 1).
Moreover, even though the ALJ used the term “offset,” we understand the ALJ as having found that Cline has no liability for temporary disability benefits insofar as the claimant has already received those same benefits from JBQ. We know of no authority, and the claimant cites none in support of the notion that a claimant is entitled to more than one temporary disability award for the same period of time. Thus, the ALJ’s order is consistent with applicable law.
In this respect the facts of this claim are distinguishable from circumstances where the claimant receives funds from a collateral source, such as a family or charity, that are not expressly made to fulfill an employer’s obligation for temporary disability benefits under the Act. Consequently, we disagree with the claimant’s contention that the ALJ’s order creates an “offset” for all sources of money a claimant may receive pending the determination of an employer’s liability for temporary disability benefits.
We also agree with the ALJ that this result is consistent with the prohibition against double recovery. The prohibition against double recovery is designed to prevent the claimant from receiving workers’ compensation benefits and other employer financed benefits for the same injury. Myers v. State, 428 P.2d 83 (Colo. 1967); Scriven v. Industrial Commission, 736 P.2d 414, 416 (Colo.App. 1987). However, the double recovery rule is not solely restricted to the receipt of payments which are wholly or partially financed by the employer who is found liable for the injury. See § 8-42-103(1)(e), C.R.S. 1999, (offset for workers’ compensation benefits paid to the claimant from another state or the federal government).
In reaching our conclusions we recognize that § 8-41-401(1) renders the statutory employer solely liable for workers’ compensation benefits awarded to the injured employee of an uninsured subcontractor, and that the general contractor is precluded from seeking any reimbursement from the subcontractor, except the cost of insurance. Herriott v. Stevenson, 172 Colo. 379, 473 P.2d 720 (1970). However, Cline has not sought reimbursement from JBQ.
Further, § 8-41-401(1) does not purport to address the unique circumstances presented here, where the subcontractor voluntarily pays temporary total disability benefits on behalf of the statutory employer and does not contest the ALJ’s order granting the statutory employer a credit for all previously paid benefits. Consequently, we do not read § 8-41-401(1) to preclude the ALJ’s disposition.
II.
The respondents contend the ALJ erred insofar as she determined that they are bound by JBQ’s failure, in the first instance, to designated a treating physician. We conclude that the respondents’ argument is premature.
Under § 8-43-301(2), C.R.S. 1999, 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).
In the context of medical benefits, the term “authorization” refers to the physician’s legal authority to treat. Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026
(Colo.App. 1993). Thus, a finding that treatment is “authorized” is not itself a “medical benefit.” One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
Here, the ALJ’s order does not award or deny the claimant any particular medical benefit. In fact the ALJ was unable to determine if there were any outstanding medical bills for the respondents to pay. Rather, the ALJ merely determined the identity of the authorized treating physicians and expressly reserved all other issues for future determination. Therefore, the ALJ’s order on the issue of medical benefits is interlocutory and not currently subject to review. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986) (order may be partially final and partially not final); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents’ appeal of the ALJ’s order dated October 13, 1999, concerning the identify of the authorized treating physicians is dismissed without prejudice, and the award of temporary disability benefits is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 19, 2000
to the following parties:
Pete Atencio, P. O. Box 541, Romero, CO 81148
J. B. Q. and Allen, Inc., 1012 East Ave., Alamosa, CO 81101-3435
M. Cline, Inc., Valley Trenching, 720 S. Colorado Blvd., #100N, Denver, CO 80246
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance —
Interagency Mail (For Respondents M. Cline, Inc. and CCIA dba Pinnacol Assurance)
Jeff Francis, Esq., 940 Wadsworth Blvd., #400, Lakewood, CO 80215 (For Respondent J. B. Q. and Allen, Inc.)
Stephen A. Jones, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy