IN THE MATTER OF THE CLAIM OF REYES ABEYTA, Claimant, v. WW CONSTRUCTION MANAGEMENT, Employer, and BUSINESS INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-356-512Industrial Claim Appeals Office.
February 28, 2002

ORDER
The claimant seeks review of orders of Administrative Law Judge Coughlin (ALJ) dated August 23, 2001, and October 3, 2001. We dismiss without prejudice the petition to review the August 23 order, and affirm the order of October 3.

This case has a complex procedural history, and a review of that history is necessary to understand the issues. The claimant sustained a compensable injury in 1997. The respondents admitted liability for temporary disability benefits from September 15, 1997 through October 4, 1997, based on an average weekly wage of $350.

On February 14, 2001, one of the claimant’s treating physicians purported to place the claimant at maximum medical improvement (MMI). On February 20, 2001, the claimant filed a notice and proposal to select a Division-sponsored independent medical examination (DIME) physician, pursuant to § 8-42-107.2, C.R.S. 2001, for the purpose of reviewing the issues of MMI and medical impairment. The respondents then filed their own notice and proposal to select a DIME physician, and a motion to strike the claimant’s notice and proposal. The respondents argued the claimant’s notice and proposal was premature under §8-42-107.2(2)(a)(I)(A), C.R.S. 2001, because the respondents had not yet filed a final admission of liability. On March 9, 2001, Prehearing Administrative Law Judge (PALJ) Purdie granted the respondents’ motion to strike.

On April 4, 2001, the claimant filed an application for hearing listing the issues as improper calculation of the average weekly wage, additional temporary disability benefits, and whether the claimant’s or the respondents’ notice and proposal to select the DIME should be “honored and acted upon by the Division IME unit.” On April 9, 2001, PALJ Fitzgerald entered an order requiring the respondents to produce the insurance file. In the response to application for hearing dated May 9, 2001, the respondents added the issue of whether PALJ Fitzgerald correctly ordered them to produce the file. A hearing was scheduled for July 24, 2001.

On July 3, 2001, the respondents filed a motion for summary judgment alleging that PALJ Purdie’s order striking the claimant’s notice and proposal to select a DIME physician was correct as a matter of law. Thus, the respondents requested an order “affirming” PALJ Purdie’s order. The respondents further asserted the claimant’s prior testimony established an average weekly wage of $286, and requested entry of an order denying and dismissing the claim for additional temporary disability benefits.

On July 23, 2001, a prehearing conference was held before PALJ Fitzgerald. Apparently, the parties entered into a stipulation that the issues set for hearing on July 24, 2001, should be decided based on the respondents’ motion for summary judgment, and a cross motion for summary judgment to be filed by the claimant. The claimant filed the cross motion for summary judgment on July 27, 2001. This motion disputed that the treating physician actually placed the claimant at MMI, disputed the respondents’ interpretation of the law concerning selection of DIME physicians, argued the respondents did not properly request a DIME physician, contended the claimant is entitled to temporary benefits based on an average weekly wage of $400, and argued the respondents failed to comply with the discovery order issued by PALJ Fitzgerald and should be sanctioned.

On August 3, 2001, the ALJ entered an order denying the respondents’ motion for summary judgment and the claimant’s cross motion for summary judgment. The ALJ noted a DIME was scheduled for July 3, 2001, and stated that, assuming the DIME went forward, the issue involving proper selection of the DIME physician was moot. Concerning average weekly wage and temporary disability benefits, the ALJ ruled the respondents are entitled to prospective relief only, and the respondents may seek a hearing in the event the claimant withdraws his application for hearing on these issues. There was no express ruling concerning the discovery sanctions. Both parties petitioned to review this order, but the respondents subsequently withdrew their petition.

The ALJ then issued an order to show cause why the claimant’s petition to review should not be dismissed without prejudice for lack of a final order. After considering the claimant’s response, the ALJ entered an order dated October 3, 2001, which dismissed the claimant’s petition to review without prejudice. The claimant then filed a petition to review the October 3 order.

Section 8-43-301(2), C.R.S. 2001, provides that 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 require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 865 P.2d 1158 (Colo.App. 1994); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, orders which determine liability for benefits without determining the amount of benefits are interlocutory under the statute. See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).

The claimant’s assertions notwithstanding, the ALJ’s order of August 23, 2001, is not final and reviewable for purposes of § 8-43-301(2). The order does not award the claimant additional temporary disability benefits based on a change in the average weekly wage, nor does it deny an increase in such benefits. Rather, the order simply determines the issue must proceed to a hearing at which time evidence will be taken to determine whether the claimant is entitled to additional benefits. In ruling on a petition to review the ALJ may always set the matter for additional hearing. See § 8-43-301(5), C.R.S. 2001.

Neither does the ALJ’s ruling that the issue concerning selection of the DIME physician is “moot” render the August 23 order final and reviewable. As we have held on numerous occasions, MMI opinions and impairment ratings issued by DIME physicians do not constitute “benefits” or “penalties” within the meaning of the Workers’ Compensation Act. Rather, the opinions of DIME physicians serve an evidentiary function in determining the date of MMI and the medical impairment rating. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985); Beede v. Allen Mitchek Feed Grain, W.C. No. 4-317-785 (April 20, 2000); Omer v. Lone Star Steakhouse and Saloon, W.C. No. 4-293-337
(December 14, 1999). Indeed, the opinions and ratings of DIME physicians are subject to being overcome following an evidentiary hearing. Section 8-42-107(8)(b)(III), C.R.S. 2001; § 8-42-107(8)(c), C.R.S. 2001.

Here, the ALJ drew the legal conclusion that the claimant’s objection to the DIME proceeding is moot. However, that legal conclusion does not in and of itself deny the claimant any benefits or penalties, nor does it require the respondents to pay any benefits or penalties. Thus, the correctness of the ALJ’s legal conclusion, and the remedy to be imposed if that conclusion is incorrect, must await adjudication of the claimant’s right to benefits. Meza v. Conagra Beef Co., W.C. No. 4-444-220
(December 11, 2000), cited by the claimant, is not authority to the contrary. In Meza the ALJ’s order prohibited the claimant from seeking a DIME and effectively ended the claimant’s right to obtain any further benefits. Here, as the ALJ recognized, the DIME procedure has been implemented, although in a manner which the claimant believes to be illegal and objectionable. In any event, the claimant’s right to seek further benefits has not been absolutely barred as was the case in Meza, and the claimant retains the right to raise his objections to the ALJ’s ruling once benefits are awarded or denied.

Neither is the ALJ’s order final and reviewable with respect to the issue of the discovery violation. The ALJ did not determine in her order what, if any, sanctions should be imposed based on the alleged violation of the discovery order. In any event, refusal to impose a sanction for a discovery violation does not, in most cases, constitute denial of a benefit or penalty. See Reed v. Industrial Claim Appeals Office, 13 P.3d 800 (Colo.App. 2000).

IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated August 23, 2001, is dismissed without prejudice.

IT IS FURTHER ORDERED that the ALJ’s order dated October 3, 2001, which dismissed without prejudice the claimant’s petition to review the August 23 order, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

________________________________ David Cain
________________________________ Kathy E. Dean

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. 2001.

Copies of this decision were mailed February 28, 2002 to the following parties:

Reyes Abeyta, 3595 W. 29th Ave., #24, Denver, CO 80211

WW Construction Management, Inc., 1660 S. Albion St., #309, Denver, CO 80222-4041

Business Insurance Company, Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155

Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)

Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)

BY: A. Pendroy