W.C. No. 4-470-002Industrial Claim Appeals Office.
November 1, 2002
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Klein (PALJ) which struck the claimant’s Application for a Division-sponsored Independent Medical Examination (DIME). We dismiss the petition to review without prejudice.
The claimant suffered an admitted industrial injury in May 2000. On July 1, 2002, the respondents filed a Final Admission of Liability which admitted liability for a scheduled disability award. The claimant timely objected to the Final Admission but did not file a Notice and Proposal for a DIME within the time provided by § 8-42-107.2(2), C.R.S. 2002. Consequently, in an order dated September 11, 2002, the PALJ granted the respondents’ motion to strike the claimant’s subsequently filed Notice and Proposal for a DIME on grounds it was not timely filed.
Section 8-43-301(2), C.R.S. 2002, provides that any 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 award or deny a benefit or penalty are interlocutory and not subject to review, until they are incident to a subsequent order which awards or denies a benefit or penalty. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
Section 8-43-207.5(2), C.R.S. 2002, grants a PALJ authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3), C.R.S. 2002, provides that “an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties,” but further provides “such an order shall be interlocutory.” In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246
(Colo. 1998), the court held that a PALJ’s order approving a settlement agreement is a final order subject to review. However, the court distinguished an order approving a settlement from orders “relating to a prehearing conference.” The court stated that orders relating to prehearing conferences are “interlocutory (i.e., not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the director or an ALJ.” Id. at 1254. The court also indicated that “the propriety of the PALJ’s prehearing order may be addressed at the subsequent hearing.” Id. at 1254.
Relying on Orth, we have issued a series of decisions which held that a PALJ’s order striking a claimant’s request for the selection of an DIME physician under § 8-42-207.2(2) is subject to review by an Administrative Law Judge (ALJ) in a subsequent hearing, and thus is interlocutory. See Lofgren v. Kodak Polyschrome Graphics, W.C. No. 4-445-606 (December 18, 2000); Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000). We adhere to our previous conclusions.
We perceive no appreciable distinction between the facts in Lofgren and the circumstances presented in this claim. Here, as in Lofgren, the PALJ’s order does not itself award or deny benefits, although it may ultimately prevent the claimant from establishing the right to additional whole person impairment benefits. See §§ 8-42-107(8)(c) and 8-42-107.2(b), C.R.S. 2002. Consequently, we conclude that the PALJ’s order is interlocutory, and not reviewable until the propriety of the order has been reviewed by an ALJ.
In view of this disposition we do not consider the respondents’ contention that the record is legally insufficient to establish that the claimant’s Petition to Review was timely filed. As stated above, the claimant’s Petition to Review is premature. Accordingly, we have no jurisdiction to review the PALJ’s order regardless of whether the claimant’s Petition to Review was filed in accordance with § 8-43-301(2). Consequently, the respondents’ argument is moot.
IT IS THEREFORE ORDERED that the claimant’s petition to review the PALJ’s order dated September 11, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
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Kathy E. Dean
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Bill Whitacre
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. 2002. 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 ____________November 1, 2002 _____________to the following parties:
Kathy Wood, 31911 County Road EE, Wray, CO 80758
Delores Barker, Wray Community Hospital District, 1017 W. 7th St., Wray, CO 80758-1420
Colorado Hospital Association Trust, c/o Denise Groves, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Douglas L. Stratton, Esq. and Andrew R. Bantham, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526-6316 (For Respondents)
BY: A. Hurtado