W.C. No. 4-426-344Industrial Claim Appeals Office.
October 16, 2000
ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) authorizing a change in the treating physician. We dismiss the petition to review without prejudice.
Here, the ALJ entered an order authorizing a change in the treating physician. The respondents argue the order is contrary to the holding in Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), because the request constituted a “constructive challenge” to the treating physician’s determination of maximum medical improvement. The claimant argues the ALJ’s order is not final and reviewable under § 8-43-301(2), C.R.S. 2000. We agree with the claimant.
Section 8-43-301(2) 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 neither award nor deny benefits are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Similarly, orders which determine liability for benefits or penalties without determining the amount of benefits or penalties to be awarded are not final for purposes of review See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
In light of these principles, we have previously held that an order granting a change of physician, in the absence of an award of specific medical benefits, is not final and reviewable. We concluded that such an order merely determines the physician is authorized to treat the claimant, without requiring the respondents to provide any particular medical benefits. The rationale for this holding is that a finding of authorization is distinct from a determination that particular treatment is reasonable and necessary. Garner v. Town of Ignacio,
W.C. No. 4-288-201 (November 30, 1999); Fernandez v. City and County of Denver, W.C. No. 4-122-74 (February 7, 1996).
Applying those principles here, we conclude the ALJ’s order is not final and reviewable. The ALJ merely authorized a change in the treating physician, but did not order the respondents to pay for any particular treatment. However, we deny the claimant’s request for attorney fees. To our knowledge, no published decision by a Colorado appellate court has ruled on the specific issue before us, and we decline to impose attorney fees under these circumstances.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated May 18, 2000, is dismissed without prejudice. The claimant’s request for attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
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. 2000.
Copies of this decision were mailed October 16, 2000 to the following parties:
Tammy Dimitt, 3121 E. Road, #B, Grand Junction, CO 81504
Rick Sinner, A P Services/Prime Cut, 1960 N. 12th St., Grand Junction, CO 81501
AIU Insurance Company, Tina Gustafson, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Craig P. Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy