W.C. No. 4-476-4-476-906, 4-356-910Industrial Claim Appeals Office.
July 10, 2002
ORDER
These consolidated workers’ compensation claims, the respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which found the respondent failed to overcome the Division-sponsored independent medical examination (DIME) physician’s opinion that the claimant was not at maximum medical improvement (MMI). We dismiss the petition to review without prejudice.
The claimant sustained a compensable injury in September 2000. After the treating physician placed the claimant at MMI, the claimant sought a DIME. The DIME physician opined the claimant was not at MMI for one component of the industrial injury which affected the claimant’s left shoulder. However, the DIME physician assigned an impairment rating for the claimant’s back condition.
The respondent requested a hearing on the issues of compensability of the shoulder condition and apportionment of the DIME physician’s rating for the back condition. The claimant sought an award of permanent disability benefits, medical treatment after MMI, and adjustment of the average weekly wage.
At the hearing, the ALJ limited the issue to overcoming the DIME physician’s opinion concerning MMI. (Tr. p. 15). On February 15, 2002, the ALJ entered an order finding the respondent failed to overcome the DIME physician’s finding that the claimant was not at MMI. The ALJ also determined that the issues of permanent partial disability and medical benefits after MMI were not ripe. Finally, the ALJ “reserved” all issues not determined by the order. The respondent appealed the order arguing the ALJ misapplied the burden of proof concerning compensability of the claimant’s shoulder condition.
Under § 8-43-301(2), C.R.S. 2001, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant any benefits or penalties, are interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Furthermore, orders which determine liability for benefits without determining the amount of benefits to be awarded do not award or deny benefits as contemplated by the statute. See United Parcel Service v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
Here, although the ALJ found the claimant is not at MMI, the order does not require the respondent to pay any benefits as a result of that determination. Neither does the order deny the claimant any benefits. Indeed, the order expressly states that issues not determined are reserved. Under these circumstances, the order is interlocutory and not subject to immediate review.
We note that if the parties are able to agree that the ALJ’s order entitles the claimant to specific benefits, such as temporary disability, they may so stipulate while preserving the respondent’s right to appeal. Otherwise, review of the order must await the occurrence of the circumstances listed in § 8-43-301(2).
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated February 15, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
An action to modify or vacate the 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 Street, 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. 2001.
Copies of this decision were mailed July 10, 2002 to the following parties:
Olivia Canales, 12020 Grape Way, Thornton, CO 80241
City and County of Denver, _ Jean Baines, Workers’ Compensation Unit, 1675 Broadway, #1600, Denver, CO 80202
Rebecca Greben, IME Coordinator, Tower 2, #640, Division of Workers’ Compensation —
Pepe J. Mendez, Esq., 700 Broadway, #1101, Denver, CO 80203 (For Claimant)
Wayne E. Vaden, Esq., 303 E. 17th Ave., #1100, Denver, CO 80203 (For Respondent)
By: A. Hurtado