W.C. No. 4-452-439Industrial Claim Appeals Office.
March 24, 2004
ORDER
The respondents seek review of an order of Administrative Law Judge Muramoto (ALJ) insofar as it denied a request to “strike” the claimant’s request for a Division-sponsored independent medical examination (DIME). We dismiss the petition to review without prejudice.
The claimant sustained a compensable injury in November 1999. In July 2000, an authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) and assigned an impairment rating. On August 2, 2000, the respondents filed a final admission of liability (FAL) based on the ATP’s finding of MMI and rating. The claimant filed an objection to the FAL on August 18.
On August 24, 2000, the Division of Workers’ Compensation (Division) wrote a letter to the insurer advising that the FAL did not include the medical report of the ATP and requested the insurer to file an amended FAL. On August 29, 2000, the insurance adjuster forwarded the ATP’s medical report, but maintained the report had been included with the August 2 FAL. On September 7, 2000, the claimant filed a notice and proposal to select a DIME physician.
The respondents subsequently moved to strike the claimant’s notice and proposal to select a DIME physician, arguing that the request was not timely filed under the provisions of section 8-42-107.2(2)(a)(I)(A), C.R.S. 2003. The motion to strike was denied by a prehearing ALJ (PALJ) on August 13, 2003. A DIME was conducted in December 2000. The respondents then requested the ALJ to review the PALJ’s ruling in connection with a hearing on the claimant’s request for medical benefits.
On October 29, 2003, the ALJ upheld the PALJ’s ruling and denied the respondents’ request to strike the DIME. Thus, the ALJ held the claimant is not bound by the ATP’s finding of MMI and impairment rating.
On review, the respondents dispute the ALJ’s findings of fact and legal conclusions. However, we hold the disputed portion of the ALJ’s order is not final and reviewable.
Section 8-43-301(2), C.R.S. 2003, provides the 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 meet one of these criteria are interlocutory. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Here, the ALJ’s order refusing to strike the DIME report does not deny the claimant any benefits, nor does it require the respondents to pay any benefits. Rather, the DIME physician’s opinions concerning MMI and impairment are assigned special evidentiary weight when the issues of MMI and impairment are ultimately litigated. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). It follows that the contested portion of the ALJ’s order is not final and reviewable, and the respondents’ appeal is currently interlocutory. See Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003) (order striking claimant’s request for DIME and ordering Division to proceed with respondents’ request for DIME not final and reviewable).
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated October 29, 2003, 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 Arapahoe, 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. 2003.
Copies of this order were mailed to the parties at the addresses shownbelow on March 24, 2004 by A. Pendroy.
Kathy A. Gates, 5780 E. 68th Way, Commerce City, CO 80022
Rose Terrace Care Center, 5230 E. 66th Way, Commerce City, CO 80022
Christina Martino, Resource Management Systems, Inc., 7447 E. Berry Ave., #200, Greenwood Village, CO 80111
James E. Freemyer, Esq., 1575 Race St., Denver, CO 80206 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 880210 (For Respondents)