W.C. No. 4-459-164Industrial Claim Appeals Office.
July 26, 2001
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Klein (PALJ) which granted the respondents’ Motion to Strike Division IME. We dismiss the petition to review without prejudice.
On June 27, 2000, the respondents mailed a final admission of liability which admitted for permanent partial disability based on a scheduled impairment of 3 percent loss of the arm at the shoulder. On or about July 26, 2000, attorney Kokus submitted to the Division of Workers’ Compensation (Division), by way of facsimile transmission, an entry of appearance on behalf of the claimant, an objection to the final admission of liability, and a notice and proposal to select an independent medical examiner. On December 20, 2000, attorney Kokus filed an Application for Division Independent Medical Examination (DIME). Apparently, the DIME was scheduled for February 7, 2001.
However, on January 19, 2001, the respondents filed a Motion to Strike Division IME. The respondents alleged the December 20, 2000 request for the DIME was filed “well outside the jurisdictional 30-day period.” The motion cited § 8-42-107.2, C.R.S. 2000, and Rule of Procedure XIV (L) (3), Colo. Code Reg. 1101-3, as authority for the motion. Attorney Kokus filed a response arguing that the objection to the final admission of liability and the notice and proposal to select the DIME were timely filed, and therefore, the claimant had complied with the jurisdictional requirements of § 8-42-107.2(2)(b), C.R.S. 2000. Attorney Kokus also alleged he showed good cause for filing a late request for a DIME. However, on January 31, 2001, the PALJ granted the respondents’ Motion to Strike Division IME, finding the claimant’s request for the DIME was not timely filed. The claimant then filed a petition to review the PALJ’s order.
Section 8-43-301(2), C.R.S. 2000, 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. Generally, procedural orders pertaining to the admission or exclusion of evidence are not final and appealable. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).
Section 8-43-207.5(2), C.R.S. 2000 grants a PALJ authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3), C.R.S. 2000, 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 agreement 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. 1254. The court also indicated that “the propriety of a PALJ’s prehearing order may be addressed at the subsequent hearing.” Id. at 1254.
For these reasons, we have previously held a PALJ’s order striking a claimant’s request for a DIME to contest the treating physician’s medical impairment rating is interlocutory and not subject to immediate review under § 8-43-301(2). Lofgren v. Kodak Polychrome Graphics, W.C. No. 4-445-606, December 18, 2000; Sander v. Summit Group Inc., W.C. No. 4-369-777, September 27, 2000. In these cases, we concluded a PALJ’s order striking a request for DIME on the issue of impairment does not award or deny any benefits, and is interlocutory because it is subject to further review by an ALJ employed by the Division of Administrative Hearings. We see no basis for departing from our prior rulings.
IT IS THEREFORE ORDERED that the claimant’s petition to review the PALJ’s order dated January 31, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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 July 26, 2001 to the following parties:
Bill L. Jarvis, 1320 Trenton St., Denver, CO 80220
Workers’ Compensation Coordinator, Hajoca Corporation, 4700 Dahlia St., Denver, CO 80216-3223
Renessa Jensen, Travelers Indemnity Company of Illinois, P. O. Box 173762, Denver, CO 80217-3762
George A. Kokus, Esq., 6000 E. Evans Ave., #1-G20, Denver, CO 80220 (For Claimant)
Julie D. Swanberg, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
BY: A. Pendroy