W.C. No. 4-497-321.Industrial Claim Appeals Office.
September 17, 2003.
ORDER
The respondents seek review of an order of Administrative Law Mattoon (ALJ) which determined the decedent’s death was proximately caused by an injury arising out of and in the course of his employment. We dismiss the appeal for lack of a final order.
The matter came before the ALJ on a claim for death benefits. At the commencement of the hearing the claimant’s attorney acknowledged it was a “fully contested” death claim and that all issues “implicit on the widow’s benefits” were in dispute. (Tr. July 19, 2002, p. 3).
On conflicting medical evidence, the ALJ found the claimant proved the decedent died as a result of falling from a truck in the course and scope of his employment. Therefore, the ALJ ordered the respondents to pay “death benefits to Claimant in accordance with applicable law.” All other issues were expressly reserved for future determination.
Our appellate authority is limited to the review of “final” orders See § 8-43-301(2), C.R.S. 2002; United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). A final order is an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” Orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by § 8-43-301(2), 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 § 8-42-115 C.R.S. 2002, the calculation of death benefits is based on the decedent’s average weekly wage. Further, the amount and duration of death benefits requires a determination of whether the decedent was survived by whole or partial dependent.
Here, the sole issue before the ALJ for adjudication was the “cause” of the decedent’s death. (See Tr. January 9, 2003, p. 66). Accordingly, the ALJ did not determine whether there were any whole or partial dependents of the decedent. Neither did the ALJ determine the decedent’s average weekly wage or the amount of death benefits payable to the claimant.
Furthermore, we are unable to locate any stipulation by the parties concerning the identity of the decedent’s dependants or the amount of benefits payable to the claimant. Under these circumstances, the ALJ’s order is interlocutory and not currently subject to review. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents’ Petition to Review the ALJ’s order dated February 5, 2003, is 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 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. 2002. 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 September 17, 2003 to the following parties:
Frances Ericksen, 2727 Withers, Pueblo, CO 81003
Barry Winch, Foxworth Galbraith Lumber Co., 60 Greenhorn Dr., Pueblo, CO 81004
John Smith, Foxworth Galbraith, 17111 Waterview Pkwy., Dallas, TX 75252
Amy Nelson, Royal SunAlliance, P. O. Box 6506, Englewood, CO 80155
James R. Koncilja, Esq. and Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
T. Paul Krueger, II, Esq. and Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado