W.C. No. 4-376-283Industrial Claim Appeals Office.
May 17, 2001
ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 7, 2000. We conclude the ALJ’s order is not final and reviewable. Therefore, we dismiss the petition to review without prejudice.
The issue in this case is permanent partial disability benefits. The ALJ concluded the claimant is entitled to “medical impairment benefits based upon a rating” of 11 percent combined with 14 percent whole person medical impairment. However, the ALJ expressly found the “record evidence does not indicate a combination” of 11 percent and 14 percent impairment. (Finding of Fact 10). Consequently, the ALJ ordered that “if the parties are unable to determine the precise total of medical impairment benefits based upon such award, either party may set a hearing on that limited issue.”
The record does not indicate the parties reached any stipulation concerning the proper combination 11 percent impairment and 14 percent impairment, or that any hearing was ever set to resolve the issue. Instead, the respondent mailed a petition to review the ALJ’s on April 21, 2000, and the matter was subsequently briefed.
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 immediate review. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Thus, for an order to be final and appealable it must determine not only liability, but also the amount of benefits or penalties to be paid. See United Parcel Service, Inc., v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
Here, the ALJ found the record was inadequate to determine the precise amount of permanent partial disability benefits which must be paid. In this regard, we note that relevant portions of the AMA Guides should be admitted into evidence when pertinent to resolving the issues See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Consequently, the ALJ ordered the parties to reach an agreement concerning the issue, or set the matter for a hearing. The record does not reflect the parties pursued either of these alternatives. Consequently, the precise amount of permanent partial disability benefits to be paid by the respondents has not been determined, and the order is not currently final and appealable for purposes of § 8-43-301(2).
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated of April 7, 2000, is dismissed without prejudice. On remand, the parties shall reach a stipulation concerning the proper “combination” of 11 percent and 14 percent whole person impairment, or set the matter for a hearing to resolve the issue. In either event, the ALJ shall enter a final order reflecting the parties’ agreement, or resolving the issue as a matter of fact, after a hearing.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, which may be served by mail at 1515 Araphoe, Tower 3, Suite 350, Denver, CO 80202, 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. 2000.
Copies of this decision were mailed May 17, 2001 to the following parties:
Brigida Xiloj, P. O. Box 178, Ft. Morgan, CO 80701
Deb Carlock, Excel Corporation, C. S. 4100, Ft. Morgan, CO 80701
Stacy Strickland, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
IME Coordinator, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail
James E. Gigax, Esq., 410 17th St., #2400, Denver, CO 80202 (For Claimant)
Chris Forsyth, Esq., and Kathleen M. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy