W.C. No. 4-349-438Industrial Claim Appeals Office.
April 13, 1998
ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated October 24, 1997. We dismiss the appeal for lack of a final order.
Under § 8-43-301(2), C.R.S. 1997, 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); 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).
Here, the ALJ found that the claimant suffered an injury on August 8, 1997, arising out of and in the course of her employment for Rocky Mountain Nurses. At the time of the injury the claimant was concurrently employed at St. Mary’s Hospital.
The ALJ’s order requires the respondents to pay for the reasonable and necessary medical expenses incurred to treat the injury. However, the ALJ did not require the respondents to pay any specific medical benefits and no specific benefits were requested.
The ALJ also ordered the respondents to pay temporary total disability benefits “at the rate of two-thirds of [the claimant’s] average weekly wage” commencing August 8, 1997. However, the record does not contain any admission or stipulation concerning the claimant’s average weekly wage from the concurrent employments, and the ALJ did not determine the claimant’s average weekly wage. Furthermore, the ALJ expressly reserved all issues not resolved by the order for future determination.
In the absence of a determination of the claimant’s average weekly wage, the ALJ’s order does not establish the amount of the temporary disability benefits payable to the claimant. Under these circumstances, the October 24 order does not award or deny any “benefit” within the meaning of § 8-43-301(2). Therefore, 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’ Petition for Review of the ALJ’s order dated October 24, 1997, 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 inthe Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty (20) daysafter the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 13, 1998 to the following parties:
Julia S. Poole, 204 W. 6th St., Palisade, CO 81526
Rocky Mountain Nurses, Inc., 225 N. 5th St., Ste. 215, Grand Junction, CO 81501-2653
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Gudrun Rice, Esq., 101 South Third St., Ste. 265, P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________