W.C. Nos. 4-571-059, 4-575-713, 4-575-715.Industrial Claim Appeals Office.
February 1, 2005.
ORDER
Respondents Archdiocese of Denver and it its insurer, Liberty Mutual Insurance Company (Liberty respondents), seek review of an order of Administrative Law Judge Harr (ALJ) insofar as it determines the claimant is not at maximum medical improvement (MMI) and orders a changed in the authorized treating physician (ATP). We dismiss the petition to review without prejudice.
The claimant sustained a compensable injury on November 7, 2001. An ATP initially placed the claimant at MMI in February 2002 with no impairment. The determination of MMI was apparently predicated on the claimant’s failure to attend treatment. In 2003 the Liberty respondents filed a final admission of liability (FAL) admitting for medical benefits only and asserting the claimant reached MMI with no impairment. The claimant objected to the FAL and requested a Division-sponsored independent medical examination (DIME).
The DIME physician issued a report dated September 9, 2003, in which he opined the claimant is not at MMI because he needs diagnostic studies and treatment for depression. The claimant filed an application for hearing listing the issues as, among others, temporary disability benefits, medical benefits, change of physician, and the respondents’ alleged waiver of the right to challenge the DIME. In its response to the application for hearing, the Liberty respondents listed a number of issues including the contentions that the claimant was responsible for a termination from employment, and the DIME physician was not authorized to issue a binding report because the examination was conducted under the authority of § 8-43-502(3), C.R.S. 2004, not § 8-42-107, C.R.S. 2004.
Insofar as pertinent, the ALJ noted the DIME physician found the claimant is not at MMI, and the ALJ concluded the DIME physician’s determination regarding MMI is now binding because it was not challenged by the Liberty respondents. (Findings of Fact 27, 32; Conclusion of Law A, p. 12). The ALJ also ordered a change of physician to Dr. Gray because he found the previous treaters did not prescribe a psychological evaluation and because the claimant trusts Dr. Gray. Finally, the ALJ agreed with the Liberty respondents that the claimant is not entitled to temporary total disability (TTD) benefits after September 3, 2002, because the claimant was responsible for his termination from employment with the Archdiocese. All issues not resolved by the order were reserved for future determination.
The Liberty respondents seek review of the ALJ’s order contending that the finding the claimant is not at MMI violates their due process rights because they did not receive notice that the issue of MMI would be considered. The respondents also dispute the order for a change of physician. They argue that in the “absence of a finding that Claimant is not at MMI, the granting of a change of physician request based upon care which is allegedly needed to cure and relieve the effects of the injury would be, at best, premature.” We conclude that the order is not final and reviewable with respect to these issues.
Section. 8-43-301(2), C.R.S. 2004, 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.” Thus, orders which do not grant or deny benefits are interlocutory and not immediately reviewable. See Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Similarly, orders which determine liability for benefits without determining the amount of benefits or penalties are not final for purposes of review. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
In light of these principles we have, on numerous occasions, held that orders granting a change of physician are not, standing alone, final and reviewable. An order requiring a change of physician merely determines that a particular provider is authorized to treat the claimant, but authorization is not itself a benefit. Further, such an order does not require the respondents to provide any particular treatment, and they remain free to challenge the reasonableness and necessity for any specific procedures or treatments which the new ATP may prescribe. Eg. Miller v. Garden Terrace Nursing Home, W.C. No. 4-164-248 (September 26, 2003); Dimitt v. A P Services/Prime Cut, W.C. No. 4-426-344 (October 16, 2000). Thus, the ALJ’s order for a change of physician is not currently final and reviewable because no specific medical benefits were awarded, and the issue of specific benefits was reserved under the terms of the order.
Further, the ALJ’s determination that the DIME physician’s finding concerning MMI is now binding does not constitute an award or denial of benefits. MMI serves as the statutory point of demarcation between temporary and permanent disability. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). In this case the ALJ’s conclusion the claimant is not at MMI has not yet resulted in an award of TTD benefits, nor has there been an award of permanent disability benefits. Consequently, the respondents have not been ordered to pay any benefits based on the MMI determination.
IT IS THEREFORE ORDERED that the Liberty respondents’ petition to review the ALJ’s order dated August 16, 2004, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Bernardo Pena, Denver, CO, Nancy Schaffner, St. Vincent de Paul Parish, Denver, CO, Archdiocese Housing Authority, Denver, CO, John Bearss, Liberty Mutual Insurance Company, Englewood, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Elsa Martinez Tenreiro, Esq., Denver, CO, (For Claimant).
Raymond A. Melton, Esq., Denver, CO, (For Respondents Archdiocese of Denver/St. Vincent de Paul Parish and Liberty Mutual Insurance Company).
Ryan McManis, Esq., Denver, CO, (For Respondents Archdiocese Housing Authority and Pinnacol Assurance).