W.C. No. 4-500-892.Industrial Claim Appeals Office.
December 30, 2004.
ORDER
The claimants seek review of an order of Administrative Law Judge Mattoon (ALJ) concerning the claimants’ request for death benefits. We dismiss the appeal without prejudice for lack of a final order.
On April 26, 2001, the decedent was fatally injured during a robbery while working for the respondent-employer. At the time of his death, the decedent was a minor. The deceased was survived by his mother, Ella Petta (Mrs. Petta), an older brother Richard who was born on February 22, 1982, and three younger step-brothers named Brian, Randall and Paul.
Section 8-42-114, C.R.S. 2004, provides for the payment of death benefits to dependents of a deceased worker. According to § 8-41-503(1), C.R.S. 2004, C.R.S. dependency shall be determined as of the date of the industrial injury and under § 8-41-502 C.R.S. 2004, a mother, brother or sister who was partially supported “by the deceased employee at the time of death and for a reasonable period of time immediately prior thereto is considered an actual dependent.” The statute further provides that to be entitled to compensation, such dependents “must prove that they were incapable of or actually disabled from earning their own living,” and where the incapacity is temporary, compensation shall only be paid during the period of such temporary incapacity or disability.
The claimants applied for an award of workers’ compensation death benefits and alleged they were partially dependent on the deceased. The respondents did not dispute the decedent’s step-brothers qualified as “brothers” under § 8-41-502.
The ALJ found Mrs. Petta and her children were partially dependent on the decedent at the time of his death and for a reasonable period of time prior to his death. In particular, the ALJ found that prior to his death, the decedent gave Mrs. Petta approximately $300 per month towards household expenses, “which was a significant amount considering the family income.” The ALJ then awarded Mrs. Petta death benefits commencing April 26, 2001. However, the ALJ found Mrs. Petta’s temporary disability ended September 27, 2001, evidenced, in part, by seasonal employment commencing October 2001. Therefore, the ALJ terminated the award of death benefits effective September 27, 2001.
On review, the claimants contend the ALJ erroneously relied on evidence of Mrs. Petta’s seasonal employment to find Mrs. Petta’s entitlement to death benefits terminated on September 27, 2002. We conclude the award to Mrs. Petta is not currently reviewable.
Section 8-43-301(2), C.R.S. 2004, provides that 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. The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). Accordingly, 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); Industrial Commission v. Fort Logan Mental Health Center, 682 P.2d 1185 (Colo. 1984) (order which determined liability but left unresolved amount and duration of benefits was not reviewable).
Here, it is undisputed the maximum rate of death benefits is applicable because the decedent was a minor. See § 8-42-102(4), C.R.S. 2004 Arkansas Valley Seeds, Inc., v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo.App. 1998), DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991). However, the portion of that maximum rate payable to Mrs. Petta is governed by § 8-42-119, C.R.S. 2004, which, in relevant part provides that:
“Partial dependents shall be entitled to receive only that portion of the benefits provided for those wholly dependent which the average amount of the wages regularly contributed by the deceased to such partial dependents at and for a reasonable time immediately prior to the injury bore to the total income of the dependents during the same time.” (Emphasis added).
The ALJ did not determine the “total income” of the dependents at the time of the decedent’s death. Accordingly, the ALJ did not make sufficient findings to ascertain the amount of death benefits awarded to the Mrs. Petta. Under these circumstances, the ALJ’s order is interlocutory and not currently reviewable.
The claimants also contend the ALJ erred in failing to award death benefits to the decedent’s brothers. We note the respondents’ contention that the claimants abandoned their claim for death benefits to the decedent’s brothers, however we are not persuaded.
The claimants filed an Application for Hearing on their request for death benefits. At the commencement of the hearing on May 29, 2002, the ALJ directed the parties to identify the issues to be determined. Claimant’s counsel stated that the issue was whether the decedent’s “mother and siblings are entitled to Benefits” and “[T]he Respondents dispute that the natural mother and the minor siblings are entitled to Dependency Benefits.” (Tr. p. 4). The respondents’ attorney did not dispute that statement of the issues. After three days of testimony, the ALJ allowed the claimant to make a closing statement in writing. The claimant’s closing argument explicitly requests death benefits for Mrs. Petta and her children. (May 9, 2003, Position Statement, Paragraph 17).
Nevertheless, the ALJ’s order states that the sole issue was the “dependency of Ella Petta.” Consequently, the ALJ did not make any findings of fact concerning whether the decedent’s brothers are entitled to death benefits. Instead, the ALJ expressly reserved all other issues future determination. Thus, the ALJ’s order does not deny or award death benefits to the decedent’s brothers and the claimant’s appeal is premature. However, we note that the dependency claims were properly before the ALJ for adjudication on the existing record.
IT IS THEREFORE ORDERED that the claimants’ Petition to Review the ALJ’s order dated December 17, 2003, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Robert M. Socolofsky
Ella Rosalie Petta, Kearns, UT, Richard Steele, Kearns, UT, Paul Petta, Randall Petta, and Brian Petta, Kearns, UT, Ol’ Sarge d/b/a Subway, Woodland Park, CO, Mid-Century Insurance Company, Denver, CO, Steven U. Mullens, Esq., Colorado Springs, CO, (For Claimants).
Christian M. Lind, Esq., Denver, CO, (For Respondents).