W.C. Nos. 4-289-918, 4-289-919Industrial Claim Appeals Office.
May 14, 1997
ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated October 15, 1996. We dismiss the appeal for lack of a final order.
The ALJ determined that the claimant sustained a compensable injury in the nature of an occupational disease as a result of his concurrent employment as a mailer for the Rocky Mountain News and The Denver Post. Specifically, the ALJ found that the employment duties had aggravated the claimant’s pre-existing rheumatoid arthritis. Further, the ALJ apportioned liability for the occupational disease in the same ratio as the number of hours the claimant worked for each employer. Therefore, the ALJ determined that the Rocky Mountain News and its insurer, the Transportation Insurance Company, are liable for 29.5 percent of the claimant’s workers’ compensation benefits, and determined that the Denver Post Corporation and its insurer, Liberty Mutual Insurance Company, are liable for 70.5 percent of the claimant’s benefits. However, the ALJ refused to apportion liability in accordance with Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993).
The ALJ determined that the respondents are liable for medical benefits reasonably necessary to treat the occupational aggravation of the claimant’s arthritis. However, the ALJ did not award or deny any specific medical benefits, but stated that if the parties are unable to agree on which medical expenses are compensable, the matter may be set for an additional hearing.
Similarly, the ALJ did not award any specific temporary or permanent disability benefits. Instead, the ALJ expressly reserved this issue for future determination. However, the ALJ ordered that any temporary disability benefits to be paid by the Rocky Mountain News for the period December 9, 1995 to February 20, 1996, be reduced by 50 percent as a penalty for the claimant’s failure timely to report his injury to the Rocky Mountain News.
Under § 8-43-301(2), C.R.S. (1996 Cum. Supp.), 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). 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).
Here, the ALJ did not require the respondents to pay any specific benefit or penalty. Furthermore, in the absence of a specific order concerning temporary disability benefits, the ALJ’s late reporting penalty against the claimant is not a final order. See C F I Steel Corp. v. Industrial Commission, supra.
Moreover, the claimant did not file a petition for review of the penalty order. Under these circumstances, the contested portion of the order does not award or deny any “benefit” within the meaning of §8-43-301(2). See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986) (order may be partially final and partially not final). Therefore, we currently lack jurisdiction to review the contested portion of the ALJ’s order, and the respondents’ appeal must be dismissed Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents’ petitions for review of the ALJ’s order dated October 15, 1996, are dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
An action to modify or vacate this Order may be commenced in theColorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, byfiling a petition for writ of certiorari with the court, with service ofa copy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum.Supp.).
Copies of this decision were mailed May 14, 1997 to the following parties:
Crist Ellis, 13151 E. 48th Ave., Denver, CO 80239
Denver Publishing Co., 5990 Washington St., Denver, CO 80216-1337
Denver Post Corporation, 1560 Broadway, Denver, CO 80202-5102
Transportation Insurance Co., P.O. Box 17369, T.A., Denver, CO 80217
Liberty Mutual Fire Ins., 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Jonathan S. Robbins, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (Liberty Respondents)
David J. Nowak, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202 (Trans. Ins. Respondents)
Robert W. Turner, Esq., 1120 Lincoln St., Ste. 1001, Denver, CO 80203 (For the Claimant)
BY: ____________________________