W.C. No. 4-467-734Industrial Claim Appeals Office.
February 25, 2003
ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ awarded permanent partial disability benefits based on whole person impairment to the right shoulder. We dismiss the appeal for lack of a final order.
In October 1999 the claimant suffered admitted injuries to his right shoulder and neck. The claimant ultimately underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned 14 percent impairment for the loss of use of the arm at the shoulder due to ulnar neuropathy, 15 percent whole person impairment to the cervical spine, 5 percent mental impairment and 18 percent impairment of the upper extremity due to the AC resection arthroplasty and range of motion deficits in the right shoulder. The DIME physician converted the upper extremity ratings to whole person impairment and combined the whole person ratings for a total rating of 33 percent whole person impairment.
Based upon the evidence presented at a hearing on August 9, 2001, the ALJ found the claimant’s “ratings for cervical spine impairment and shoulder impairment are not expressed on the schedule of disabilities.” Further, the ALJ found the respondents failed to overcome the DIME physician’s rating. Therefore, the ALJ ordered the respondents to pay permanent partial disability benefits based on the whole person conversion of 18 percent impairment to the upper extremity and the combined value of that rating and 15 percent impairment of the cervical spine. The ALJ also awarded scheduled disability benefits based on 14 percent of the arm at the shoulder and mental impairment benefits. The respondents timely appealed the ALJ’s order.
On review the respondents contend the ALJ misapplied the law in finding that the claimant’s shoulder injury must be compensated as whole person impairment. We conclude that the contested portion of the order is not currently subject to review.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any 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). Further, an award must determine the amount of benefits to be awarded before it is considered final and appealable. See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
Here, the ALJ determined the whole person conversion value for 18 percent impairment of the upper extremity and the combined value for the shoulder and cervical impairment were not established by the record. Therefore, the ALJ reserved this computation for a future determination and directed either party to apply for a hearing on the issue in the event they were unable to resolve the matter. (Conclusions of Law 4; Order 2). Further, the ALJ did not determine what amount of benefits that were actually due pursuant to the benefit cap in § 8-42-107.5
C.R.S. 2002. Accordingly, although the ALJ awarded medical impairment benefits for the combined value of the cervical impairment rating and the whole person conversion of 18 percent of the upper extremity, the ALJ did not determine the actual amount of benefits to be paid.
Moreover, the record does not reflect that the parties have resolved the combined value issue. To the contrary, the record reflects that the claimant applied for a hearing on the respondents failure to pay the medical impairment benefits awarded by the ALJ. Under these circumstances, the contested portion of the ALJ’s order is not currently subject to review and the petition to review must be dismissed without prejudice. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986) (order may be partially final and partially not final) Director of the 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 August 16, 2001, 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 theColorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, byfiling a petition for review with the Court, within twenty (20) daysafter 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 ofthe petition upon all other parties, including the Industrial ClaimAppeals Office, which may be served by mail at 1515 Arapahoe, Tower 3,Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________ February 25, 2003 _____to the following parties:
Pete Ramos, 3435 S. Ammons St., Bldg. #30-1, Lakewood, CO 80227
Sears Logistics Services, 1701 W. 6th Ave., Denver, CO 80204-4902
Rita Allen, Liberty Mutual Insurance, P.O. Box 168208, Irving, TX 75016-8205
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: __________A. Hurtado__________