W.C. No. 4-636-195.Industrial Claim Appeals Office.
January 17, 2006.
ORDER
The respondents seeks review of an order dated August 12, 2005 of Administrative Law Judge Felter (ALJ) that determined that the claimant’s compensable injury aggravated his pre-existing low back condition, that calculated his average weekly wage at $211.68, and that ordered payment of medical benefits and temporary total disability benefits. We dismiss the petition to review without prejudice.
The ALJ entered the following pertinent factual findings. On December 22, 2004, the claimant sustained an admittedly compensable right knee injury, and received authorized treatment from Douglas Wong, M.D. Dr. Wong opined that the claimant’s knee injury also resulted in injury to his low back. Although there was conflicting evidence on that issue, the ALJ credited the opinions of Dr. Wong and found that the claimant’s industrial injury aggravated and accelerated the claimant’s pre-existing back condition. The ALJ also found that the claimant’s average weekly wage was $211.68. Based upon his factual findings, the ALJ ordered the respondents generally to pay for “all reasonably necessary” medical treatment for the claimant’s back condition and to pay temporary disability benefits.
The respondents’ sole contention on appeal is that there is no substantial evidence supporting the factual finding that Dr. Wong believes that “surgical intervention is warranted” to treat the claimant’s back condition. The respondents argue that the factual finding, in conjunction with the ALJ’s order to pay “the costs of all reasonably necessary medical care relating to the treatment of [the claimant’s] back” might “close” the issue of their liability for a back surgery.
Initially, we disagree with the respondents insofar as they argue that the issue of medical treatment was not properly one to be adjudicated at the hearing. Although the precise argument made by the respondents is that the issue of back surgery was not one “identified by the ALJ in his Order,” we presume that the thrust of the respondents’ argument is that the issue was not one regarding which they had adequate notice. See Respondents’ Brief in Support of Petition to Review at 4. However, at the commencement of the hearing held on May 19, 2005, the ALJ recited his understanding of the issues to be heard, one of which was medical benefits. He requested confirmation from the attorneys that those were the issues, and the claimant’s attorney stated that “[t]he medical issue really is the claimant’s entitlement to followup surgery for back and back care treatment. . . .” Tr. (5/19/2005) at 3. Respondents’ counsel generally agreed that “those are the issues,” stating that the compensability of the back condition should properly be decided and “what treatment is required” for that back condition. Tr. (5/19/2005) at 4. The hearing was adjourned and at the commencement of the continued hearing the ALJ stated that the issue was “medical benefits (inaudible), specifically followup surgery recommended by Dr. Wong. . . .” Tr. (7/25/2005) at 3. The claimant’s attorney agreed and, although the respondents’ attorney was present, he did not object to that statement of the issues or indicate any disagreement. Accordingly we disagree with the respondents insofar as they argue that the issue of the surgery was not properly presented for hearing.
Nonetheless, we conclude that the respondents do not seek review of a portion of the order that is final and reviewable. Accordingly, we dismiss the petition to review.
Section 8-43-301(2), C.R.S. 2005 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). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
Here, the respondents’ sole contention on appeal is that a finding concerning Dr. Wong’s opinion about surgery is unsupported by the record. However, the ALJ’s order does not award or deny the claimant the back surgery referred to in the finding or, indeed, any particular medical benefit. Further, the ALJ did not determine whether the surgery or any other particular treatment was reasonable, necessary, and related to the industrial injury. We have previously held that orders which determine compensability and contain only a general award of medical benefits are interlocutory unless the record reveals that specific medical benefits were at issue. E.g. Gonzales v. Public Service Co. of Colorado, W.C. No. 4-131-978 (May 14, 1996) Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Here, where the ALJ’s order does not state that liability for the surgery was an issue for hearing, where no findings are entered concerning whether it is reasonable and necessary, and where the order contains no discussion of the issue, the order to pay generally reasonable and necessary medical treatment cannot be read to require the respondents to pay for the surgery. Under these circumstances, this portion of 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 ALJ’s order dated August 12, 2005, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Walter Stapleton, Littleton, CO, Alissa Hall, United Parcel Service, Commerce City, CO, Sandi Goldberg, Liberty Mutual Group, Irving, TX, Neil D. O’Toole, Esq., Denver, CO, (For Claimant).
Robert A. Weinberger, Esq., Denver, CO, (For Respondents).