W.C. No. 4-545-458.Industrial Claim Appeals Office.
November 4, 2005.
ORDER
The claimant seeks review of an order dated July 29, 2005 of Administrative Law Judge Jones (ALJ) that resolved the ambiguity in a Division-sponsored independent medical examination (DIME) report. We dismiss the appeal for lack of a final order.
The claimant sustained a compensable injury to his neck and was placed at maximum medical improvement (MMI) by the authorized treating physician (ATP). The ATP performed an impairment evaluation and found the claimant had 24 percent whole person permanent impairment. The respondents filed a final admission of liability for permanent partial disability based upon a 24 percent whole person impairment. The claimant requested a DIME. The DIME physician at one point in his report assessed a 32 percent whole person impairment. However, the ALJ carefully noted various statements contained in the DIME physician’s reports to the effect that the previous rating of 24 percent by the ATP was probably more valid due to the dramatic difference in the range of motion measurements found by the two physicians on examination. The DIME physician stated that the ATP’s impairment for range of motion “is probably more valid since it was closer to time of MMI.”
The respondents filed an application for hearing. No testimony was presented and the parties submitted the case essentially on the basis of medical reports and closing argument.
The ALJ found that the repeated statements by the DIME physician concerning the “more valid” range of motion impairment as well as his explanation as to the deficiency of the measurements taken at the time he examined the claimant lead to the conclusion that the DIME opined the claimant sustained 24 percent whole person impairment. The ALJ therefore resolved the ambiguity in the DIME report to determine that the claimant has a 24 percent whole person permanent impairment.
The ALJ’s July 29, 2005 order resolved the ambiguity in the report of the DIME physician. However, under § 8-43-301(2), C.R.S. 2005, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a 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 review. Nankin Co. v. Embanks, 775 P.2d 88
(Colo.App. 1989). The July 29, 2005 order does not require any party to pay a penalty or benefits, nor does it deny the claimant a benefit or penalty. As we read the order, it merely resolved the ambiguity in the report, and the parties are now placed back in the position of complying with the provisions of § 8-42-107.2(4). Accordingly, the July 29, 2005 order is interlocutory and not currently reviewable.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated July 29, 2005 is dismissed without prejudice.
Michael Anderson, Englewood, CO, IBM, Boulder, CO, Elaine Shields, Liberty Mutual Insurance Company, Irving, TX, David R. Medina, Esq., Denver, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).