W.C. No. 4-376-713Industrial Claim Appeals Office.
January 28, 2000
[1] FINAL ORDER
[2] The uninsured respondent seeks review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant sustained a compensable injury, found the claimant is entitled to temporary disability benefits, awarded medical benefits “secondary” to the claimant’s injury, and entered an award of attorney fees against the respondent’s attorney. We dismiss the petition to review without prejudice.
[3] The ALJ found the claimant was injured on December 19, 1997, while employed by the respondent. The ALJ determined the claimant is entitled to temporary disability benefits, but reserved ruling on the “specific amounts owed for temporary disability” because the claimant’s average weekly wage was not endorsed as an issue. The ALJ also found that various medical providers are authorized to treat the claimant, and ordered the respondent to pay “for those services secondary” to the claimant’s compensable injury. Finally, the ALJ ordered the respondent’s counsel to pay the claimant’s counsel $1,080 in attorney fees based on the respondent’s counsel’s last-minute request for a continuance of a previously scheduled hearing.
[4] The respondent’s counsel filed a timely petition to review on behalf of the respondent “to the extent that” the employer was “affected” by the ALJ’s order. The bulk of the petition to review contains arguments disputing the ALJ’s award of attorney fees. Otherwise, the petition contains only general allegations of error pertaining to the sufficiency of the evidence and the adequacy of the findings.
[5] After the filing of the petition to review, the claimant moved to dismiss that portion of the petition to review which disputes the award of attorney fees. On March 3, 1999, the ALJ dismissed the petition to review insofar as it concerns the attorney fees. The ALJ held that the respondent did not have standing to challenge the award of attorney fees.
[6] Subsequently, the respondent’s counsel has moved to withdraw as attorney for the respondent. No brief was ever filed in support of the petition to review.
[7] Initially, we agree with the ALJ’s conclusion that the respondent lacks standing to dispute the award of attorney fees on behalf of its attorney. To the contrary, the respondent’s counsel was required to file a separate petition to review, or be added as a petitioner in the respondent’s petition to review. Neither of these events occurred. Therefore, the ALJ properly dismissed that portion of the petition to review concerning attorney fees, and we lack jurisdiction to consider the issue now. Adams v. Neoplan U.S.A. Corp., 881 P.2d 373 (Colo.App. 1993).
[8] We also hold that the remainder of the ALJ’s order is not currently final and subject to review. Section 8-43-301(2), C.R.S. 1999, 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, ___ P.2d ___ (Colo.App. No. 99CA0540, June 24, 1999). In view of these principles we have previously held that general awards of medical benefits are not final and reviewable absent a ruling concerning the respondent’s liability for specific treatment. E.g., Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Similarly, we have determined that an award of temporary disability benefits is not final and reviewable unless the claimant’s average weekly wage, and hence the amount of the award, is determined. See Lindsey v. Stand-By Personnel, W.C. No. 4-266-504 (June 27, 1996).
[9] Here, the ALJ’s order determined the respondent is liable for medical benefits, but does not determine the amount of the respondent’s liability. Indeed, our review of the transcript reflects that the claimant was unable to present evidence on this issue. (Tr. p. 20). Consequently, we conclude the ALJ’s award of medical benefits is not yet final and reviewable. Further, the award of temporary disability benefits is not final and reviewable because the ALJ has not yet determined the claimant’s average weekly wage.
[10] IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated January 21, 1999, is dismissed insofar as it challenges the award of attorney fees.
[11] IT IS FURTHER ORDERED that the respondent’s petition to review the ALJ’s order dated January 21, 1999, is otherwise dismissed without prejudice.
[12] INDUSTRIAL CLAIM APPEALS PANEL
[13] ___________________________________ David Cain
[14] ___________________________________ Bill Whitacre
NOTICE
[15] This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
[16] Copies of this decision were mailed January 28, 2000 to the following parties:
[17] Robert Tooley, 1519 Luke St., Ft. Collins, CO 80524
[18] Johnson Sons Trucking, Inc., 2445 Nyssa Dr., Loveland, CO 80538-3276
[19] Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
[20] Richard K. Blundell, Esq., and David T. McCall, Esq., 1024 8th St., Greeley, CO 80631 (For Respondent)
[21] B. Carter, Employer Investigations Unit, Division of Workers’ Compensation — Interagency Mail
[22] Kat Pennucci, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail
[23] Hollyce H. Farrell, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203
[24] BY: A. Pendroy