W.C. No. 4-445-606Industrial Claim Appeals Office.
December 18, 2000
ORDER
The claimant seeks review of an order of former Prehearing Administrative Law Judge Keck (PALJ) which struck the claimant’s Application for Division Independent Medical Examination (DIME). We dismiss the petition to review without prejudice.
The claimant suffered a compensable injury on July 29, 1999. On January 25, 2000, the respondents filed a Final Admission of Liability for zero medical impairment benefits. The claimant objected and filed a “Notice Proposal to Select IME” in accordance with § 8-42-107.2(2)(b), C.R.S. 2000. The parties were subsequently unable to agree upon a DIME physician.
The PALJ found that the claimant thereafter failed timely to file an Application for DIME, as required by § 8-42-107.2(3), C.R.S. 2000. The claimant also refused to pay for the DIME and failed to seek relief from the director or an ALJ. Under these circumstances, the PALJ determined the claimant “effectively canceled the DIME.” Further, the PALJ determined the claimant failed to establish good cause for the late filing of an Application for DIME. Consequently, the PALJ granted the respondents’ motion to strike the DIME. The claimant then filed this appeal.
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 governing the admission or exclusion of evidence are not final and appealable. See Reed v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA004, January 20, 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 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.”
Consequently, in Sander v. Summit Group, Inc.,
W.C. No. 4-369-777 (September 27, 2000), we held that a PALJ’s order which struck the claimant’s request for the selection of an DIME physician under § 8-42-207.2(2), was subject to review by an Administrative Law Judge in a subsequent hearing and thus, was interlocutory.
We perceive no appreciable distinction between the facts i Sander and the circumstances presented in this claim. Here, as in Sander, 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), 8-42-107.2(b), C.R.S. 2000. We adhere to our conclusions in Sander. Consequently, we conclude that the PALJ’s order is interlocutory, and the propriety of the order is subject to review by an ALJ in a subsequent hearing.
IT IS THEREFORE ORDERED that the claimant’s petition to review the PALJ’s order dated August 7, 2000, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2000. 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 December 18, 2000 to the following parties:
Loretta Lofgren, 33499 WCR 392, Gill, CO 80624
Diane Markley, Human Resources Manager, Kodak Polychrome Graphics, One Litho Plate Drive, Windsor, CO 80550
Transportation Insurance Co., Dave Reed, RSKCo, P. O. Box 5408, Denver, CO 80217
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
Lynn P. Lyon, Esq. and Suzanne M. Gall, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy