W.C. No. 4-468-159Industrial Claim Appeals Office.
December 6, 2001
ORDER
The respondents seek review of an order of Administrative Law Judge Snider (ALJ) insofar as it determined the claimant sustained a compensable injury and awarded temporary total disability benefits. We dismiss the petition to review without prejudice.
At the commencement of the hearing, the parties advised the ALJ that they were in agreement concerning the claimant’s average weekly wage but were unsure of the exact amount. The ALJ then stated he was “uncomfortable” entering an order without a specific agreement concerning the amount of the average weekly wage, but suggested that after the hearing the parties submit a “letter showing the agreement of the parties.” The ALJ indicated he would then include the average weekly wage in the order. However, the ALJ’s order reflects the parties failed to notify him “of the amount of the average weekly wage pursuant to this stipulation.” Thus, the file contains no admission, order, or stipulation concerning the amount of the claimant’s average weekly wage. As a result, the ALJ ordered the respondents to pay temporary total benefits, but the amount of such benefits is not specified.
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 sublject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). For this reason, it has been held that orders which determine liability for benefits without determining the “amount of damages” are not subject to immediate review. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999); Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
Here, the ALJ’s order determines liability for temporary total disability benefits. However, there has been no determination of the claimant’s average weekly wage, and the parties failed to provide the promised written stipulation. Consequently, it is impossible to determine whether the parties’ apparent agreement concerning the average weekly wage subsequently failed to materialize. In any event, the ALJ’s order is not currently final and reviewable because there has been no order determining the amount of temporary total disability benefits which the respondents must pay. See Lindsey v. Stand-By Personnel,
W.C. No. 4-266-504 (June 27, 1996).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 3, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
An action to modify or vacate the Order may be 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. 2001.
Copies of this decision were mailed December 6, 2001 to the following parties:
James W. Westover, 870 Pueblo Dr., Lake Havasu City, AZ 86406
Valley Chrysler Dodge Plymouth, 2100 30th St., Boulder, CO 80301
Greg Forst, Mid-Century Insurance Co., 7535 E. Hampden Ave., #300, Denver, CO 80231
Clifford E. Eley, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: L. Epperson