W.C. No. 4-456-886Industrial Claim Appeals Office.
March 14, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied the claim for additional permanent partial disability benefits, and concluded there was no jurisdiction to review an order of Prehearing Administrative Law Judge DeMarino (PALJ), which granted the respondents’ request to strike a Division-sponsored independent medical examination (DIME). Because we conclude the ALJ retained jurisdiction to review the order of the PALJ, we remand the matter for further proceedings.
The claimant failed to procure a transcript of the hearing before the ALJ. Consequently, we must assume the ALJ’s findings of fact are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The following statement of facts is gleaned from the ALJ’s order and the documents contained in record.
The ALJ found, and documentary evidence in the record reflects, that on October 20, 2000, the respondents filed a final admission of liability based on a medical impairment rating assessed by a treating physician. On October 30, 2000, the claimant filed an objection to the final admission and a notice and proposal to select a DIME physician. See §8-42-107.2(2)(b), C.R.S. 2001.
On March 5, 2001, the claimant filed an application requesting the Division of Workers’ Compensation (Division), to appoint a DIME physician. However, by that point in time, the claimant had not filed any application for hearing.
On March 8, 2001, the respondents filed a Motion to Strike Division IME, arguing the claimant’s application for a DIME was untimely because the claimant failed to file an application for hearing setting “ripe” issues for adjudication. Although not explicitly cited, the respondents’ motion was presumably predicated on former § 8-43-203(2)(b)(II), C.R.S. 2000, requiring that within thirty days after the final admission, the claimant must contest the admission in writing and request a hearing on any disputed issues that are ripe for hearing. (Statute significantly amended with respect to final admissions filed on or after March 11, 2001, 2001 Colo. Sess Laws, ch. 23, at 49-50).
On March 19, 2001, the claimant filed a Response to Motion to Strike Division IME, arguing the respondents did not comply with the rules of procedure because they failed to notify the Division in writing, of the failed DIME negotiations. Again, although there was no specific citation of authority, this argument was apparently predicated on §8-42-107.5(3), C.R.S. 2001, and Rule of Procedure XIV (L) (3) (a) (3), 7 Code Colo. Reg. 1101-3, which require the insurer to provide written notification the Division of failed negotiations for appointment of a DIME physician. The claimant also argued he had no obligation to apply for a hearing because the issue of permanent disability benefits will not become “ripe” for adjudication until the requested DIME is completed.
By order dated March 26, 2001, the PALJ granted the respondents’ Motion to Strike Division IME. The PALJ’s order contains no specific findings of fact, nor does it contain any citation of legal authority.
On April 10, 2001, the claimant filed an application for hearing listing the issue as “reversal” of the PALJ’s order. The respondents filed a response asserting that the PALJ’s order was interlocutory and the claimant is “barred from further litigating this issue.”
A hearing was held on July 25, 2001. On August 2, 2001, the ALJ entered the order under review. The ALJ stated the issues were “overcoming” the PALJ’s prehearing conference order striking the claimant’s application for a DIME, and the parties “agreed the issue of permanency was ripe at this hearing.” Relying on § 8-43-207.5(3), C.R.S. 2001, and Industrial Claim Appeals Office v. Orth, 965 P.2d 1246
(Colo. 1998), the ALJ concluded the PALJ’s order was “interlocutory” and not subject to review. The ALJ further stated the order striking the request for a DIME was “procedural” in nature, and did not award or deny any benefits. Consequently, the ALJ concluded she did not have jurisdiction “to entertain an appeal” from the PALJ’s order, and thus “affirmed” it. The ALJ then held she lacked jurisdiction to award additional permanent partial disability benefits without receiving a DIME physician’s impairment rating. Consequently, the ALJ denied the claim for additional permanent partial disability benefits.
The claimant filed a petition to review the ALJ’s order alleging the ALJ erred in denying “the right” to a DIME, but the claimant did not file a brief in support of the petition. Nevertheless, under the circumstances, the petition to review defines a specific issue and we shall consider it on appeal. Section 8-43-301(2), C.R.S. 2001 (petition to review shall set forth in detail the particular errors and objections of the petitioner); Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986) (failure to file a brief does not constitute a jurisdictional defect in the appeal).
We hold, under the facts of this case, that the ALJ erred in concluding she lacked jurisdiction to review the PALJ’s order dismissing the claimant’s application for a DIME on the issue of medical impairment benefits. Section 8-43-301(2), C.R.S. 2001, provides that any dissatisfied party may seek review of an order “which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty.” Orders which do not meet these criteria are interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). However, an order which is interlocutory when issued may be reviewed in conjunction with review of a final order which awards or denies benefits or penalties. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).
Here, the ALJ’s order denies the claimant additional permanent partial disability benefits because the claimant failed to procure a DIME. The ALJ correctly concluded that she lacked jurisdiction to award any permanent disability benefits based on whole person medical impairment absent a DIME physician’s rating. Section 8-42-107(8)(c), C.R.S. 2001 (hearing on medical impairment rating shall not take place until the finding of DIME has been filed with the Division); cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Moreover, by denying the claim for additional permanent disability benefits, and “affirming” the PALJ’s dismissal of the claimant’s request for a DIME, the ALJ’s order effectively prevents the claimant from obtaining additional permanent disability benefits. Thus, the ALJ’s order contains a denial of benefits and is final and reviewable for purposes of our review. Section 8-43-301(2).
Because the ALJ’s order is final and reviewable, we consider whether the ALJ correctly concluded the PALJ’s order striking the DIME is interlocutory and unreviewable. Orders involving discovery and the presentation of evidence are ordinarily considered interlocutory because such orders do not award or deny benefits. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); American Express v. Industrial Commission, supra. In view of this principle, we have held on numerous occasions that orders determining which party is liable to pay for a DIME are interlocutory. Eg. Leos v. Kurt Group, Inc.,
W.C. No. 4-231-009
(November 15, 1996); Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996). Moreover, §8-43-207.5(3), provides that orders entered by a PALJ “shall be interlocutory.” In light of this provision, we have held that a direct appeal to the Industrial Claim Appeals Office from a PALJ’s order striking a request for a DIME is interlocutory. See Lofgren v. Kodak Polyschrome Graphics, W.C. No. 4-445-606 (December 18, 2000); Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000).
However, in Meza v. Conagra Beef Co., W.C. No. 4-444-220 (December 11, 2000), we considered the merits of an ALJ’s order which held the claimant’s notice and proposal for a DIME was prematurely filed, vacated the request for a DIME, and held the claimant was “estopped” from filing another request for a DIME. We held that not “every order involving a request for a DIME is interlocutory,” and it is “necessary to look at the specific provisions of the order to determine whether it effectively denies the claimant any benefits.” In Meza, the ALJ’s order striking the DIME and prohibiting the claimant from filing another request for a DIME was final and reviewable because the order effectively precluded the claimant from obtaining additional permanent partial disability benefits. We distinguished Sander v. Summit Group, Inc., supra, because the PALJ’s order in Sander “did not itself award or deny benefits, an PALJ orders are subject to review at a full hearing before an ALJ.” (Emphasis added).
Similarly, in Industrial Claim Appeals Office v. Orth, supra, the Supreme Court held a PALJ’s order approving a settlement was not interlocutory, and was therefore subject to review despite §8-43-207.5(3). The court observed that approval of a settlement effectively concludes the claim. The court distinguished a PALJ’s order approving a settlement from a PALJ’s “prehearing order” because a prehearing conference is followed by a full hearing, and “a PALJ’s prehearing order may be addressed at the subsequent hearing.” Industrial Claim Appeals Office v. Orth, 965 P.2d at 1254.
It follows that in this case the ALJ incorrectly held that §8-43-207.5(3) and Industrial Claim Appeals Office v. Orth, rendered the PALJ’s order striking the DIME “interlocutory” and unreviewable. Although the PALJ’s order was not immediately reviewable by the Industrial Claim Appeals Office, the statutory scheme contemplates the ALJ will review the propriety of the PALJ’s order in connection with a hearing on the merits concerning the claimant’s entitlement to permanent partial disability benefits. Further, a hearing is necessary in this case because there are disputed issues of fact which may be relevant to the determination of the ultimate issue. Specifically, the claimant contends the respondents’ alleged failure to notify the Division in writing of the failed negotiations for selection of a DIME tolled the time which the claimant had to request a DIME and file an application for hearing concerning “ripe” issues.
Under these circumstances, the ALJ’s order denying the claim for permanent partial disability benefits and refusing to review the PALJ’s order striking the DIME is set aside. Further, the matter is remanded for additional proceedings including an evidentiary hearing concerning the claimant’s factual allegations regarding the respondents’ failure to notify the Division of failed DIME negotiations, as well as any other pertinent evidentiary matters. We should not be understood as expressing any opinion concerning the underlying factual and legal requirements.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 2001, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
Copies of this decision were mailed March 14, 2002 to the following parties:
Christine Daniels, 175 N. Murray, #705, Colorado Springs, CO 80916
WCM Industries, 2121 Waynoka Rd., Colorado Springs, CO 80915
Reliance National Indemnity, Christy Bryan, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
BY: A. Pendroy