W.C. No. 4-603-819.Industrial Claim Appeals Office.
February 28, 2005.
ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) which reopened the claim and ordered that there be a change of physician. We dismiss the petition to review without prejudice.
The claimant sought to reopen her claim based on an alleged worsened condition. She also sought a change of treating physicians and unspecified medical benefits. On September 7, 2004, the ALJ entered an order finding that the claimant proved a worsened condition sufficient to reopen the claim and that the claimant should be allowed to change physicians to Dr. Greenberg. The ALJ also stated that the respondents shall pay for “treatment by Dr. Greenberg, which is reasonable and necessary to treat [the claimant’s] right shoulder conditions as it relates to her admitted industrial injury.” The respondent appealed arguing the claimant did not demonstrate a worsened condition but is making an improper attack on the treating physician’s finding of maximum medical improvement (MMI). The respondent also challenges the sufficiency of the evidence to support the order for a change of physician.
Section 8-43-301(2), C.R.S. 2004, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies the claimant any benefits or penalty may file a petition to review.” Orders which do not award or deny benefits or penalties are interlocutory and not subject to our immediate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
An order is not final if it merely reopens a claim. Reopening in and of itself does not award or deny any benefits or penalties. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Moreover, we have held in several cases that an order granting a change of physician is not final and reviewable in the absence of an order awarding specific medical benefits. The rationale for these holdings is that a finding that a particular physician is authorized to treat the claimant is distinct from a determination that particular treatment is reasonable and necessary. Eg. Miller v. Garden Terrace Nursing Home, W.C. No. 4-164-248
(September 26, 2003); Dimitt v. A P Services/Prime Cut, W.C. No. 4-426-344 (October 16, 2000).
Here, the ALJ’s order reopens the claim and orders a change of physician. However, the ALJ did not order the respondents to pay any particular medical expenses, nor did the ALJ award any other benefits. Indeed, the ALJ’s order appears to recognize that a substantial issue may yet remain concerning whether any particular treatment of the claimant’s shoulder condition is causally-related to the industrial injury, or may instead be related to the claimant’s preexisting condition. Under these circumstances, the ALJ’s order is not currently final and appealable. An award of specific medical benefits may be obtained by stipulation of the parties or by entry of an order after a hearing.
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated September 7, 2004, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Sharon L. Braun, Aurora, CO, Sharon L. Braun, Aurora, CO, Foley’s Department Stores, Aurora, CO.
Joshua Rentfow, Central Regional Claims Corporation, St. Louis, MO, Keith E. Mottram, Esq., Denver, CO, (For Respondent).