W.C. No. 3-063-709Industrial Claim Appeals Office.
February 28, 1997
ORDER
The respondents filed a Petition for Review of an order of Administrative Law Judge Martinez (ALJ) dated October 25, 1996, which reopened the claim. We dismiss the Petition for lack of a final order.
The ALJ’s order was issued pursuant to our Order of Remand dated August 29, 1996. We set aside the ALJ’s prior order which denied the claimant’s petition to reopen a settlement based upon a mutual mistake of material fact, and remanded the matter for additional findings and the entry of a new order.
On remand, the ALJ found a mutual mistake of a material fact concerning whether the claimant was at maximum medical improvement at the time of the settlement. Therefore, the ALJ reopened the claim. The ALJ also determined that the “respondents are liable for disability compensation and for the reasonable medical care necessary to cure and relieve the effects of his industrial injury.”
However, the ALJ did not award any specific disability or medical benefits. In fact, no specific benefits were requested. Rather, the sole issue before the ALJ for resolution was the petition to reopen. See (Tr. p. 3). Furthermore, the record does not reflect any stipulation by the respondents’ concerning their liability for specific disability or medical benefits upon reopening of the claim.
Section 8-43-301(2), C.R.S. (1996 Cum. Supp.), allows us to review an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” 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). 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); C F I Steel Corp. v. Industrial Commission, 650 P.2d 1332
(Colo.App. 1982); 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).
Unlike the ALJ’s prior order, the October 25, 1996, does not award or deny any “benefit” within the meaning of §8-43-301(2). Therefore, the October 25, 1996 order is interlocutory and not currently reviewable. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents’ Petition for Review of the ALJ’s order dated October 25, 1996, 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, CO 80203, by filing a petition for writ of certiorari with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 28, 1997
to the following parties:
Sean D. Davis, P.O. Box 1603, Arboles, CO 81121
Critter’s Meat Factory, 1111 Camino del Rio, Durango, CO 81301-5172
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Scot Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Daniel Spitzer, Esq., 1911 Main Ave., Ste. 103, Durango, CO 81301 (For the Claimant)
Office of the Attorney General, Civil Litigation Section, Subsequent Injury Fund Unit, 1525 Sherman St., 5th Flr., Denver, CO 80203-1760
BY: _______________________