W.C. No. 4-115-005Industrial Claim Appeals Office.
July 5, 2001
ORDER
The claimant seeks review of orders of Administrative Law Judge Stuber (ALJ Stuber) dated February 15, 2000, April 6, 2000 and June 9, 2000. We dismiss the petition to review.
The claimant suffered a compensable injury in 1991 and began treating with a physician. The respondents requested a medical utilization review (MUR) of the physician’s treatment. In an order dated November 9, 1999, the Director of the Division of Workers’ Compensation (Director) ordered a change of providers. The physician appealed the Director’s order to an ALJ who affirmed. However, on April 24, 2001, we set aside the orders of the ALJ and the Director and remanded the matter for further proceedings. It is undisputed the MUR procedure has not been completed.
In the interim the claimant requested a change of physician and filed an application for hearing. The respondents objected. Relying on § 8-43-501(2)(e), C.R.S. 2000, ALJ Stuber determined the application for hearing was premature. Therefore, on February 15, 2000, ALJ Stuber granted the respondents’ motion to dismiss the application for hearing On April 6, 2000, ALJ Stuber denied the claimant’s motion for reconsideration of the February order. The claimant timely appealed and the matter was briefed. However, ALJ Stuber determined that the disputed orders were interlocutory and not subject to appellate review. Therefore, on June 9, 2000, ALJ Stuber dismissed the claimant’s petition to review.
On appeal, the claimant contends § 8-43-501(2)(e) is not applicable to this claim and, therefore argues ALJ Stuber erroneously struck the application for hearing. The claimant also contends that insofar as the statute it applicable, it is so overly broad as to violate due process protections. We agree with ALJ Stuber that the disputed issues are not ripe for review.
Section § 8-43-301(2), C.R.S. 2000, provides that 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. Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Furthermore, orders concerning procedural issues do not satisfy the statutory definition of an appealable order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985); Jones v. Chicken-N-Pasta, W.C. No. 4-197-841, February 3, 1995 (order denying motion for protective order not subject to revie ); Figal v. City of Pueblo, W.C. No. 3-690-844, September 12, 1994 (order declining to hold hearing on a motion for protective order) (Court of Appeals dismissed appeal in 94CA1596, because neither ICAP order nor underlying order was final).
The claimant’s arguments notwithstanding, the orders dated February 15 and April 6, 2000, do not award or deny any benefit or penalty. ALJ Stuber determined the claimant’s application for hearing on her request for a change of physician was premature and that pursuant to §8-43-501(2)(e), he lacked authority to hear the claimant’s request for a change of provider until the MUR proceedings became final. However, neither order precludes the claimant from obtaining an order for a change of provider once the MUR proceeding has been completed. It follows that the contested orders are interlocutory and not currently subject to review. Consequently, ALJ Stuber did not err in dismissing the claimant’s petition to review without prejudice.
IT IS THEREFORE ORDERED that the claimant’s petition to review 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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 5, 2001 to the following parties:
Marla Noegel, 40275 Truckton Rd., Rush, CO 80833
The Salvation Army, 4751 Broadway, Denver, CO 80216-2711
Phyllis Bell, Fireman’s Fund Insurance Company, 7887 E. Belleview Ave., Englewood, CO 80111
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Pendroy