W.C. No. 4-224-912Industrial Claim Appeals Office.
January 25, 1996
ORDER
The claimant has filed a Petition to Review an order of Administrative Law Judge Wheelock (ALJ) which dismissed the claimant’s application for hearing. We dismiss the petition to review without prejudice.
The claimant suffered an admitted injury in 1992 during her employment with Great West Management Realty, Inc. The claimant filed an application for a hearing to request a change of provider. The hearing was scheduled for April 7, 1995. The day before the hearing, the respondents filed a Final Admission of Liability based upon Dr. Tyler’s determination that the claimant reached maximum medical improvement (MMI) on February 10, 1995, with zero medical impairment. Neither party requested an independent medical examination under the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.).
At the commencement of the hearing the ALJ determined that she lacked authority to proceed, and therefore, vacated the hearing. In support of her determination, the ALJ relied upon our conclusions in Story v. Fresh Express, W.C. No. 4-135-838, February 25, 1995.
Insofar as pertinent, Story v. Fresh Express, supra, was affirmed by the Court of Appeals in Story v. Industrial Claim Appeals Office,
___ P.2d ___ (Colo.App. No. 94CA0446, December 7, 1995). The court held that a request for a change of provider to obtain additional medical treatment to achieve MMI inherently disputes a determination that the claimant has reached MMI. Further, §8-42-107(8)(b), provides that the determination of MMI by the “authorized treating physician” who provided the “primary care” is binding in the absence of an IME. Consequently, the Story court held that where that physician has determined MMI, and the claimant seeks a change of provider to obtain further treatment to achieve MMI, the ALJ lacks authority to hear a request for a change of provider until the completion of an IME.
Here, the ALJ determined that the claimant’s request for a change of provider implicitly disputed Dr. Tyler’s determination of MMI. Therefore, the ALJ determined that an IME was a procedural prerequisite to a hearing.
On review, the claimant points out that, in Story and a series of other cases, we have concluded that an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning the identity of the “primary care” physician and whether that physician has determined MMI See Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 199 ; Keesee v. Dack’s Texturing Services, W.C. No. 4-156-633, December 30, 199 ; Johanningsmeier v. Swedish Medical Center, W.C. No. 4-155-315, October 27, 1994. Furthermore, the claimant contends that Dr. Simon, who has not determined MMI, is her “primary care” physician. Therefore, claimant argues that the ALJ erred insofar as she denied the claimant’s request to proceed with a hearing on the issue of whether Dr. Tyler was the “primary care” physician. We conclude that the ALJ’s order is not currently subject to review.
Initially, we note that the ALJ did not enter a written “Summary Order” or “specific findings of fact and conclusions of law” as required by § 8-43-215, C.R.S. (1995 Cum. Supp.). However, we agree with the respondents that the ALJ’s order does not award or deny a benefit or penalty, and therefore, it is an interlocutory, procedural order, which is not currently subject to review. Section 8-43-301(2), C.R.S. (1995 Cum. Supp.); American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985). Consequently, it would serve no useful purpose to remand the matter to the ALJ for the entry of a written order. Section 8-43-310, C.R.S. (1995 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
In reaching our conclusion that the ALJ’s order is not a final order, we are mindful of the fact that, under some circumstances the dismissal of a application for hearing may be a denial of benefits. Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314, February 23, 1995; Carreon v. Monfort, Inc., W.C. No. 4-140-621, December 19, 1994. Specifically, in Carreon, we concluded that where there is a factual dispute concerning the identity of the “primary care” physician, and thus, whether an IME is a procedural prerequisite to a hearing, the claimant is effectively precluded from obtaining an order on the merits of the claim for benefits unless she obtains an IME which, if the claimant’s position is correct, would not be required by law. Therefore, we determined that under such circumstances, an order dismissing the claimant’s application for hearing is reviewable.
However, those circumstances do not exist here because, as the respondents contend, the claimant waived her request for a hearing on the identity of the “primary care” physician. Admittedly, the record indicates that claimant’s counsel did request to proceed with a hearing on the identity of the “primary care” physician. (Tr. p. 18). The ALJ responded by stating that that she would not determine “who the treating physician is” in view of the parties’ dispute concerning whether the claimant is at MMI. After these comments the claimant’s stated:
“Correct, Your Honor. And we are even willing to put that dispute in abeyance. But, what we want today is a determination that: Even if the Claimant is at maximum medical improvement — which we don’t think she is — that she can change her authorized treating physician, for ongoing-treatment purposes, as Dr. Simon has stated that `she is going to need ongoing treatment.'” (Tr. pp. 18, 19).
Under these circumstances, we conclude that the claimant abandoned and waived her right to a hearing on the identity of the primary care physician at that time. See Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987). Moreover, in the absence of a request for a hearing on the identity of the primary care physician, we cannot say that the ALJ’s failure to hear the issue constitutes a denial of benefits within the meaning of § 8-43-301(2). See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990) (parties may not assert positions on appeal which were explicitly or implicitly waived at the hearing). Therefore, the ALJ’s order is not a final order, and we must dismiss the claimant’s petition to review.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s April 7, 1995 order is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced in theColorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filinga petition for review with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed January 29, 1996 to the following parties:
Valentina R. Gonzales, 4380 Morning Sun Avenue, #15, Colorado Springs, CO 80918
Great West Management Realty, 830 Vindicator Dr., Colorado Springs, CO 80919-3601
Truck Insurance Exchange, P.O. Box 378230, Denver, CO 80237-8230
Mid-Century Insurance, Attn: Dean Conley, 5575 Tech Center Dr., Ste. 111, Colorado Springs, CO 80919
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000 (For the Claimant)
Karl A. Schulz, Esq., 102 S. Tejon St., Ste. 1100, Colorado Springs, CO 80903-2264 (For the Respondents)
BY: _______________________