W.C. No. 4-489-947Industrial Claim Appeals Office.
November 14, 2002
ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied a “Motion to Amend Respondent’s Final Admission of Liability.” We dismiss the petition to review without prejudice.
No hearing was conducted and our review of the facts is gleaned from the documents in the record. The claimant sustained a back injury in January 2001. On May 6, 2002, the treating physician assigned an 11 percent whole person impairment rating. Thereafter, the respondents sent medical records to the treating physician and requested her to apportion the rating based on an alleged preexisting condition. On June 13, 2001, the treating physician issued a report apportioning the rating and assigning a 7 percent whole person rating to the industrial injury. On June 26, 2002, the respondents filed a final admission of liability based on the apportioned impairment rating.
The claimant then filed a motion requesting the ALJ to order the respondents to amend the final admission of liability. The claimant cited § 8-42-107.2(2)(b), C.R.S. 2002, for the proposition that the parties are bound by the treating physician’s 13 percent impairment rating because the respondent did not file a final admission of liability or request a Division-sponsored independent medical examination (DIME) within thirty days of receiving the original report. However, on July 26, 2002, the ALJ entered an order denying the claimant’s motion. The ALJ did not enter any specific findings or conclusions in support of the order.
Section 8-43-301(2), C.R.S. 2002, provides that any dissatisfied party may seek review of an order “which requires any party to pay a penalty or benefits or denies a 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). Orders which leave open the possibility of future litigation on an issue are interlocutory. Provo v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 01CA1239, September 12, 2002) (denial of motion to dismiss penalty claim not final and appealable).
Here, the ALJ’s order does not order the respondent to pay any benefits. Neither does it finally deny the claimant any benefits. Even if the ALJ ordered the respondent to file a modified final admission of liability, the claimant would presumably be entitled to request a DIME to dispute the modified admission (and impairment rating) in accordance with § 8-42-107.2 (2)(a)(I)(A) (B), C.R.S. 2002 (claimant has 30 days from date of mailing of final admission to dispute determination of authorized treating physician). Thus, regardless of whether the ALJ’s ruling was correct, it does not finally adjudicate the claimant’s impairment rating and consequent entitlement to permanent disability benefits. Moreover, the ALJ did not order the requested relief, and the claimant was free to contest the respondent’s June 26 final admission by requesting a DIME. Indeed, respondent’s counsel represents the claimant has requested a DIME to challenge the 7 percent impairment rating contained the June 26 final admission.
In contrast, this is not a case in which the ALJ’s order is final because it prevents the claimant from obtaining a DIME which is a prerequisite to requesting additional benefits. Meza v. Conagra Beef Co.,
W.C. No. 4-444-220 (December 11, 2000). Neither is this an order which denies benefits by requiring the claimant to undergo a DIME which is not a statutory prerequisite to obtaining the sought after benefits Manzanares v. Quality Linen and Supply, W.C. No. 4-253-807 (October 5, 1999). The claimant has not indicated that if the ALJ ordered a modified final admission she would be satisfied with the 11 percent impairment rating and willing to surrender the right to a DIME and any subsequent litigation.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated July 26, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Kathy E. Dean
NOTICE
An action to modify or vacate this 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 and all other parties, within twenty (20) days after the date this Order was mailed, pursuant to sections 8-43-301(10) and 307, C.R.S. (2002 Cum. Supp.).
Copies of this decision were mailed ________November 14, 2002_____ to the following parties:
Karina Meidinger, 12710 W. 85th Cir., Arvada, CO 80005
Lissa Pierce, Jefferson County Public Schools, P. O. Box 4001, Golden, CO 80401
Michael H. Kaplan, Esq., 11184 Huron St., #10, Denver, CO 80234 (For Claimant)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondent)
By: A. Hurtado