W.C. No. 4-409-543Industrial Claim Appeals Office.
August 21, 2001
ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded medical impairment benefits. We remand the matter for further proceedings.
The claimant applied for a hearing on the issue of permanent partial disability. The issue of average weekly wage was later added. At the commencement of the hearing on February 5, 2001, the parties reserved the issue of average weekly wage and agreed that medical impairment benefits awarded by the ALJ would be based “on the stipulation of the parties, at a later date. (Tr. p. 3).
In his order dated February 13, 2001, the ALJ ordered the respondents to pay permanent partial disability benefits based upon the combined rating of 16 percent and 15 percent whole person medical impairment. However, pursuant to the parties’ agreement, the ALJ expressly reserved the issue of average weekly wage for further determination. The respondents timely appealed.
Section 8-43-301(2), C.R.S. 2000, 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, 988 P.2d 1146 (Colo.App. 1999). In view of these principles we have previously held that general awards of temporary disability benefits are 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).
Under the applicable law, permanent partial disability benefits based on whole person medical impairment are calculated at the claimant’s temporary disability rate specified in § 8-42-105 C.R.S. 2000. That statute provides the temporary disability rate is sixty-six and two-thirds percent of the average weekly wage. It follows that the amount of a permanent partial disability award cannot be determined until the average weekly wage is determined.
Here, the parties agree this claim involves an “admitted” injury. However, the record transmitted on review does not contain any admission of liability. Consequently, we are unable to ascertain whether the respondents ever admitted for an average weekly wage. Under these circumstances, the record is insufficient to determine the amount of the ALJ’s award. Therefore, we remand the matter to the ALJ to determine whether the February 13 order is a final order within the meaning of § 8-43-301(2), C.R.S. 2000.
If on remand the ALJ determines the February 13 order is final, the ALJ shall enter specific findings of fact which articulate the basis for the determination and then shall retransmit the matter to us for review. However, if the ALJ determines the order is not final, the ALJ shall dismiss the petition to review without prejudice.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed August 21, 2001 to the following parties:
James Wolff, 1003 Robertson Rd., Gallatin, TN 37066
Waste Management, 2400 W. Union Ave., Englewood, CO 80110-5354
Waste Management, 1001 Fannin St., #4000, Houston, TX 77002
Insurance Company of the State of Pennsylvania, Carol Keim, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Stephanie J. Stevenson, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy