W.C. No. 4-365-776Industrial Claim Appeals Office.
October 17, 2001
ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated May 4, 2001, concerning overpaid benefits. We dismiss the Petition to Review for lack of a final order.
On December 1, 1997, the claimant suffered an admitted injury. On July 27, 1999, the respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits based upon the treating physician’s 15 percent whole person impairment rating. The claimant requested a Division-sponsored independent medical examination (DIME). The DIME physician assigned a 7 percent whole person impairment rating. The parties stipulated that if the claimant failed to overcome the DIME physician’s rating, there was a $17,995.44 overpayment of disability benefits.
At the conclusion of the hearing on April 10, 2001, the ALJ found the claimant failed to overcome the opinions of the DIME physician. Therefore, the ALJ determined the parties were bound by the DIME physician’s medical impairment rating and the stipulated overpayment. However, the ALJ stated that he was reserving the decision on the rate the claimant was to repay the stipulated overpayment. (Tr. pp. 40. 41).
The ALJ’s written order dated May 8, 2001, directed the claimant to reimburse the respondents for the $17,995.44 overpayment, but the order expressly reserved all other issues for future determination. The claimant timely appealed the May 8 order concerning the overpayment. The claimant alleged inter alia, the ALJ erred in failing to determine the rate the claimant was to repay the overpayment.
The matter was transmitted to us for review, but the record did not contain a brief in support of the petition to review. Because the claimant was granted an extension of time to file her supporting brief, we concluded the matter was prematurely transmitted for review. Therefore, we remanded the matter for completion of the briefing schedule.
The claimant’s brief in support of the Petition to Review was filed August 16, 2001. The claimant also filed a motion which requested the ALJ vacate the repayment order until after an evidentiary hearing on the issue of terms of repayment. On August 29, 2001, the ALJ entered an order which “modified” the May 4 overpayment order “until such time as an evidentiary hearing can be held on the issue of terms” of the repayment. The record contains no petition to review the August 29 order.
Under § 8-43-301(2), C.R.S. 2001, 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 immediate 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 to be paid, 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).
Both parties concede the ALJ’s oral ruling reserved the “terms of repayment” issue for future determination. (See Respondents’ Amended Brief in Opposition to Petition to Review, p. 2). Furthermore, as we read the ALJ’s orders of May 8 and August 29, 2001, the ALJ has determined the claimant is liable for overpaid benefits of $17,995.44; however, the ALJ has not determined what portion of the overpayment is currently due. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989), (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Rather, the ALJ exercised his discretion to reserve that determination until the presentation of additional evidence concerning the rate of repayment. See § 8-43-207(1)(j), C.R.S. 2001.
Under these circumstances, the contested portion of the ALJ’s order is interlocutory and not currently subject to review. See Oxford Chemicals Inc., v. Richardson, supra, (order may be partially final and partially not final). Therefore, we lack jurisdiction to consider the claimant’s Petition to Review and must dismiss the claimant’s Petition to Review without prejudice.
We note that the time for filing the respondents’ answer brief had not expired prior to August 29, 2001, when the ALJ retransmitted the matter to us for review. Furthermore, the respondents timely filed an opposition brief. However, because the ALJ’s order is not subject to review, the ALJ’s error in prematurely transmitting the record for review is moot.
IT IS THEREFORE ORDERED that the claimant’s Petition to Review the ALJ’s order dated May 4, 2001, concerning the reimbursement of overpaid benefits 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 the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 17, 2001 to the following parties:
Debra Stute, HC67 Box 41, Haigler, N.E. 69030-9713
Wray Community District Hospital, P. O. Box 65, Wray, CO 80758-0065
Colorado Hospital Association Trust, Denise Groves, Support Services, Inc., 7335 E. Orchard Rd., Englewood, CO 80111-2512
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Andrew R. Bantham, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
BY: A. Pendroy