W.C. No. 4-610-223.Industrial Claim Appeals Office.
July 26, 2005.
ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated February 22, 2005, which found that the claimant sustained a compensable injury, which denied the respondents’ claim for penalties for the claimant’s failure to report the injury in writing, which granted temporary total disability benefits, and which rejected the respondents’ argument that the claimant was responsible for his termination from employment. We dismiss the petition to review without prejudice.
The ALJ’s pertinent findings of fact are as follows. On March 1, 2004 the claimant was injured when he slipped and fell as he attempted to sit in a chair. The claimant reported the injury to his supervisor on the same day, and on March 2, 2004, he asked his supervisor if he could go to a hospital. The supervisor failed to refer the claimant to any particular medical provider and the claimant selected William Haun, M.D. as an authorized treating physician. He saw Dr. Haun on March 18, 2004, and the doctor referred the claimant to a pain specialist and indicated that he should not work. Pursuant to that referral, John Nelson, M.D., a pain specialist, examined the claimant on March 30, 2004 and noted complaints of low back pain, pelvic pain, and testicular pain. The claimant was also examined by W. Woodworth, D.O. following a referral by the Department of Social Services. Dr. Woodworth recommended a consultation with a neurosurgeon and stated that the claimant could return to work on September 28, 2004.
The claimant’s last day of work was March 13, 2004, and he was terminated for abandoning his job on March 19, 2004. On March 13th the claimant was attempting to obtain an appointment with Dr. Haun, who was unable to see him until March 18th, when he excused him from work on account of restrictions attributable to his injury. The claimant did not believe that he was required to call the employer because his supervisor was aware of his injury, and the claimant was not required to call in when he had sustained a previous injury in 2003. On that earlier occasion, the claimant was not required to call each day he expected to be absent, because the employer was aware that he was injured and would be off work for a protracted period of time. Accordingly, the ALJ found that the claimant did not engage in any volitional conduct leading to his termination, and was thus not responsible for the job separation.
The respondents raise several arguments on appeal. They argue that, although it is undisputed that the claimant fell at work when he attempted to sit down and missed the chair, the ALJ’s finding that the accident resulted in temporary disability was based upon inadmissible hearsay. They further argue that, because “[w]ithout an injury there is no compensable claim” the order concluding that there is a compensable claim should be set aside. The respondents also argue that the ALJ erred in denying penalties for the claimant’s failure to report the injury in writing. The respondents also argue that the ALJ’s order concluding that the claimant was not responsible for his termination from employment is not supported by substantial evidence. However, we conclude that the ALJ’s order is not presently final and reviewable.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here the ALJ’s order is not final and reviewable. The order to pay medical benefits does not require the respondents to pay any specific medical bills, any specific providers, or to pay for any specific treatment. Although the ALJ found that particular providers were authorized, and the claimant testified that he was examined by these doctors, we are unable to locate any point in the record where the specific bills were discussed or where there was any agreement that the bills would be paid in the event of an order that the claim was compensable. Under these circumstances, the order to pay “all of the costs of Claimant’s medical care” is merely a general award of medical benefits and is not currently final.
Further, an order that determines the employer’s liability for temporary disability benefits but does not determine the amount of such benefits is not a final order requiring the payment of benefits. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989); C.F. I. Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986). Here, the ALJ ordered the respondents to pay temporary disability benefits for a specific period of time; however, the ALJ made no findings concerning the claimant’s average weekly wage (AWW). Neither was there any admission or stipulation concerning the applicable AWW. Under these circumstances, the order requiring the payment of temporary disability benefits is interlocutory and not currently subject to review.
Finally, although the ALJ’s order denied the respondents a penalty for the claimant’s failure to report his injury in writing, § 8-43-301(2) confers finality only on an order that “denies a claimant any . . . penalty.” Although that portion of the order denying the respondents a penalty may be reviewable in connection with a final order subsequently entered, under the plain language of § 8-43-301(2) it is not presently final and reviewable. See BCW Enterprises, LTD v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated February 22, 2005 is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Curt Kriksciun
Victor J. Serrano, Colorado Springs, CO, Alicia Sandoval, Adelphia Communications Corporation, Colorado Springs, CO, New Hampshire Insurance Company, c/o Carol Keim, AIG Claim Services, Inc., Shawnee Mission, KS, James A. May, Esq., Colorado Springs, CO, (For Claimant).
Matthew C. Hailey, Esq., Denver, CO, (For Respondents).