W.C. No. 4-596-318.Industrial Claim Appeals Office.
March 20, 2008.
ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated November 14, 2007, that denied the claimant’s claim that the average weekly wage should be increased, and that awarded permanent partial disability benefits based upon an eight percent whole person impairment rating, plus a 14 percent impairment rating of the right arm and a ten percent impairment rating of the left arm. The order also granted the respondents’ request for attorney fees. We dismiss the petition to review the portion of the order awarding attorney fees and otherwise affirm the order.
A hearing was held on the issues of the claimant’s entitlement to permanent partial disability benefits, whether certain other issues were closed by the respondents’ final admission of liability, and the respondents’ claim for attorney fees. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury to her shoulder on June 23, 2003, and underwent medical treatment that included surgery. She reached maximum medical improvement on September 29, 2004, with permanent impairment as a result of the injury. On May 6, 2005, the insurer filed a final admission of liability admitting for temporary total disability benefits, medical benefits, and permanent partial disability benefits based upon an impairment rating of 25 percent of the right arm plus ten percent of the left arm. The final admission contained an advisement to the claimant that the claim would close absent an objection filed within 30 days. The claimant objected to the final admission and filed an application for hearing on the issues of medical benefits, permanent partial disability benefits, and permanent total disability benefits. The ALJ found that “apparently” this application for hearing was withdrawn but that, in any event,
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the record contains no evidence concerning those proceedings. On March 29, 2007, the claimant filed another application for hearing on the issues of average weekly wage, temporary total and partial disability benefits, and permanent partial disability benefits. The claimant subsequently withdrew that application for hearing following the respondents’ objection to proceeding on the issue of permanent partial disability benefits. The claimant filed another application for hearing on July 5, 2007, on the issues of average weekly wage, temporary total and partial disability benefits, and permanent partial disability benefits. The ALJ found that the claimant’s failure to file an application for hearing on the issue of average weekly wage within 30 days of the May 6, 2005, final admission closed that issue. He also found that the claimant sustained impairment to her body not contained on the scheduled of disability, and that she was therefore entitled to benefits based upon a whole person impairment rating.
Based upon his factual findings the ALJ concluded that the claimant’s claim was closed as to the issues of average weekly wage, and temporary total and partial disability benefits. The ALJ also awarded permanent partial disability benefits based on a whole person impairment rating. The ALJ also ordered that the claimant pay attorney fees pursuant to § 8-43-211(2)(d), C.R.S. 2007 on the ground that the issues of average weekly wage and temporary total disability benefits were not ripe for adjudication. In this regard, the ALJ ordered further proceedings to determine the amount of the attorney fees payable.
The claimant appealed the ALJ’s order. The claimant has not filed a brief in support of the petition to review, nor has the claimant arranged for preparation of a transcript of the hearing held. Rather, the record contains a letter from the claimant’s counsel addressed to the “Division of Administrative Hearings” in Colorado Springs and stating that “the case is not complete” until the proceedings to determine the amount of attorney fees have been conducted. We agree with the claimant insofar as she is arguing that the portion of the order awarding attorney fees is interlocutory. However, in our view, the remainder of the order is final and properly postured for our review at this time.
Because the claimant has not filed a brief, our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). The petition to review merely recites that the ALJ erred in awarding attorney fees, in “refusing to address average weekly wage,” and in “refusing to address the benefits paid on a temporary basis.” Moreover, the claimant has not arranged to have a transcript prepared and included in the record on appeal and therefore we must presume that the ALJ’s factual findings are supported by substantial evidence in the record Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
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I.
We perceive no error in the ALJ’s conclusion that the issues of the claimant’s average weekly wage and her entitlement to temporary total disability benefits were closed by the respondents’ final admission.
Section 8-43-203(2)(b)(II), C.R.S. 2007, provides as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers’ compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing.
Accordingly, the failure to file a written objection to a final admission within 30 days closes the claim on all admitted issues Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001). In this case, the insurer filed the final admission on May 5, 2005, and the claimant objected and filed an application for hearing on the issues of medical benefits and permanent partial and total disability benefits. We agree with the ALJ that the effect of the claimant’s failure to endorse average weekly wage or temporary total disability benefits was to close the claim with respect to those issues. See Olivas-Soto v. Industrial Claim Appeals Office, 143 P.3d 1178 (Colo.App. 2006) Leprino Foods v. Industrial Claim Appeals Office, 134 P.3d 475
(Colo.App. 2005); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261
(Colo.App. 2004). It follows that we perceive no error in the ALJ’s order, given the limited contentions asserted by the petition to review.
II.
In our view, however, that portion of the order awarding attorney fees to the respondents is interlocutory and not presently subject to review. Section 8-43-301(2), C.R.S. 2007, provides that any dissatisfied 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.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680
(Colo.App. 1999). An order may be partially final and reviewable and partially
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interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986) Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (order requiring payment of benefits “to which the claimant may be entitled” was not yet reviewable). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193
(Colo.App. 1991).
Here, although the ALJ awarded attorney fees to the respondents, he ordered further proceedings to determine the amount of the fees. We disagree with the respondents’ argument that the ALJ’s order finally disposed of the issue. In our view the present procedural status of this issue makes it akin to an order awarding temporary total disability benefits but preserving the amount and duration of the benefits pending determination of the claimant’s average weekly wage. Arguably, in such an order the issue of entitlement to temporary total disability is finally resolved. However, we have consistently ruled that such orders are interlocutory because they do not award benefits in any precise amount. Similarly, here the order is not final pending a determination of the amount of fees for which the claimant is liable.
IT IS THEREFORE ORDERED that the petition to review the portion of the order awarding attorney fees is dismissed without prejudice, and,
IT IS FURTHER ORDERED that the ALJ’s order dated November 14, 2007, is otherwise affirmed in all respects.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
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ALICIA CORTEZ, COLO SPGS, CO, (Claimant)
MINCO MANUFACTURING INC., Attn: MARK NELSON, COLO SPGS, CO, 80916 (Employer).
PACIFIC INDEMNITY CO., Attn: SCOTT DANSFELSER, CLAIMS SPECIALIST, C/O: CHUBB GROUP OF INSURANCE COMPANIES, ENGLEWOOD, CO, (Insurer).
ALEXANDER AND RICCI, PC, Attn: WILLIAM A. ALEXANDER, JR., ESQ., STE B, COLO SPGS, CO, (For Claimant).
MCELROY, DEUTSCH, MULVANEY CAPRENTER, LLP, Attn: KRISTIN CARUSO, ESQ./C. ADAM FOSTER, ESQ., DENVER, CO, (For Respondents).
PACIFIC INDEMNITY CO, Attn: LINDA GIOVANNI, ENGLEWOOD, CO, (Other Party).
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