W.C. No. 4-593-242.Industrial Claim Appeals Office.
May 10, 2005.
ORDER
The respondents seek review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant proved a compensable injury and required them to pay temporary total disability (TTD) benefits. We dismiss the appeal for lack of a final order.
The claimant alleged a work-related hip injury on September 18, 2003. The respondents denied liability.
The ALJ found Dr. Soble’s opinions concerning a causal relationship between the claimant’s employment and the hip injury was more persuasive than the contrary opinions of Dr. Hughes. Consequently, the ALJ determined the claimant suffered a compensable aggravation of a preexisting condition. Further, the ALJ determined the claimant is entitled to TTD benefits, without apportionment, commencing September 19, 2003. However, the ALJ expressly reserved all other issues for future determination.
As we have previously stated, § 8-43-301(2), C.R.S. 2004 only allows us to review orders which require “any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” See Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). An order which determines the employer’s liability for temporary disability benefits but does not determine th amount of such benefits is not an order requiring the payment of benefits. 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); see also Great West Casualty Co. v. Tolbert,
(Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) (an order requiring the payment of benefits “to which the claimant may be entitled” is interlocutory).
Temporary disability benefits are paid a rate equal to sixty-six and two-thirds of the claimant’s average weekly wage (AWW). Section 8-42-105(1), C.R.S. 2004. A claimant’s wage is generally determined by the money rate at which the services rendered were recompensed under the contract of hire in force at the time of the injury. Section 8-40-201(19)(a), C.R.S. 2004. The term wages includes the reasonable value of “board” and the employee’s cost of continuing health insurance under certain circumstances. Accordingly, we have repeatedly concluded that an award of temporary disability benefits is not subject to review unless the order contains findings to determine the claimant’s AWW. See Orozco v. Sno-White Linen and Uniform Rental Inc., W.C. No. 4-159-681, June 29, 1995; Theobald v. Fort Logan Mental Health Institute, W.C. No. 4-178-865, August 23, 1994. We adhere to our prior conclusion.
Here, the ALJ made no findings concerning the claimant’s AWW. Neither is there any admission or stipulation concerning the claimant’s AWW. Furthermore, although the parties presented evidence on the issue, and agreed on the value of some potential components of the claimant’s AWW, they did not specifically agree on whether the claimant is entitled to have the value of the components included in the AWW. (See Tr. pp. 16-19; 31, 32, 61, 68). Under these circumstances, we presume the ALJ’s order “reserved” the issue of the AWW for future determination. Therefore, the amount of the TTD benefits award has not been determined. It follows that the ALJ’s 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’ appeal of the ALJ’s order dated December 17, 2004 is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Curt Kriksciun
Kendra Nietfeld, 2507 Shavano Court, Fort Collins, CO 80525. McDonald’s, 1675 N. College, Fort Collins, CO 80524, Zurich Insurance, c/o Angie Hancock, Gallagher Bassett, P.O. Box 4068, Englewood, CO 80155, Bob L. Ring, Esq., 2550 Stover St., Building C, Fort Collins, CO 80525 (For Claimant).
Cindy Slevin, Esq. and Dawn Watts, Esq., 8311 E. Amherst Circle, Denver, CO 80231, (For Respondents).