W.C. No. 4-358-716Industrial Claim Appeals Office.
January 6, 2003
ORDER
The respondents seek review of a “Supplemental Procedural Order” issued by Administrative Law Judge Friend (ALJ). The respondents contend the ALJ erred in permitting the claimant to withdraw an application for hearing and “striking” the respondents’ Final Admission of Liability (FAL). We dismiss the petition to review without prejudice.
The claimant sustained a compensable injury in August 1997. After being placed at maximum medical improvement (MMI) by a treating physician, the claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician (Dr. Hall) opined the claimant was not at MMI, and the claimant was referred to Dr. Tyler for additional treatment. In December 2001, Dr. Tyler placed the claimant at MMI and assigned an impairment rating of 9 percent of the upper extremity, which he converted to a 5 percent whole person rating.
On February 26, 2002, the respondents filed a FAL admitting for permanent partial disability benefits based on Dr. Tyler’s 9 percent upper extremity rating. The claimant did not object to the FAL or request another DIME. However, on March 5, 2002, the claimant applied for a hearing on the issues of permanent partial disability and ongoing medical benefits.
A hearing was conducted on June 19, 2002. At the hearing the claimant requested to withdraw the application for hearing and return to Dr. Hall, the DIME physician, for a rating. The respondents objected that the claimant did not make a timely request for the DIME.
On June 20, 2002, the ALJ entered a “Procedural Order” determining the respondents improperly admitted for the scheduled rating, striking the claimant’s application for hearing, and ordering the respondents to admit for a 5 percent whole person impairment rating or request a DIME on the issue of medical impairment.
After the respondents petitioned for review and the issues were briefed, the ALJ entered the “Supplemental Procedural Order” currently under review. In this order the ALJ determined the issues are not “ripe for review” because the claimant has not undergone a second DIME by Dr. Hall as required by Rule of Procedure XIV (L)(7), 7 Code Colo. Reg. 1101-3 at 57 (concerning follow-up IME). Thus, the ALJ struck the respondents’ FAL and the claimant’s application for hearing.
On review, the respondents argue the claim was closed by the claimant’s failure timely to contest the FAL and request a hearing on contested issues within 30 days of the FAL as required by § 8-43-203(2)(b)(II), C.R.S. 2002. The claimant argues the ALJ’s order is not currently final and reviewable within the meaning of § 8-43-301(2), C.R.S. 2002. We agree with the claimant.
Section 8-43-301(2) provides that any 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 or penalties are interlocutory and not subject to immediate appellate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Orders concerning procedural issues, including evidentiary rulings, are generally not appealable because, standing alone, they do not award any benefits, nor do they deny benefits. Reed v. Industrial Claim Appeals Office, 13 P.3d 810
(Colo.App. 2000).
In view of these principles, we have previously held that orders requiring one party to pay for a DIME are interlocutory because a DIME is not a “benefit” under the Act but instead serves an evidentiary function with respect to the determination of MMI and medical impairment benefits. Section 8-42-107(8)(b)(III), C.R.S. 2002; § 8-42-107(8)(c), C.R.S. 2002; Beede v. Allen Mitchek Feed Grain, W.C. No. 4-317-785
(April 20, 2000); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875
(May 17, 1994).
Here, the ALJ’s order merely determines the claimant is entitled to undergo a DIME before the issues of medical impairment and ongoing medical benefits are determined. The order does not require the respondents to pay any benefits, nor does it preclude the claimant from receiving any permanent disability benefits. Instead, the ALJ correctly categorized the order as procedural because it permits the taking of additional evidence before the issues are ultimately resolved. The respondents’ assertion that the order “denies” the claimant the permanent partial disability benefits for which they admitted in the FAL is without merit. The ALJ has not finally denied any permanent disability benefits, and might yet determine the claimant is entitled to more benefits than those admitted by the respondents. Thus, the ALJ has not finally disposed of the issue of permanent disability, and the order is interlocutory. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
This result is not inconsistent with our order in Maloney v. Ampex Corp., W.C. No. 3-952-034 (February 27, 2002), cited by the respondents. In Maloney, we held an order denying a motion to strike a FAL was final and reviewable because the order rendered the claim closed and effectively denied additional benefits absent a petition to reopen. Here, the ALJ’s order does not preclude the possibility of additional benefits.
The respondents also argue that under § 8-43-301(6), C.R.S. 2002, we may review “supplemental orders” even if they are not final and reviewable under § 8-43-301(2). However, § 8-43-301(1), C.R.S. 2002, provides “any order, corrected order, or supplemental order is final unless a petition to review or appeal has been filed in accordance with this article.” Thus, supplemental orders are subject to the strictures of the statute, including the finality requirements of §8-43-301(2). In any event, § 8-43-301(2) does not limit itself to initial orders issued by ALJs, but applies to “an order” awarding or denying benefits. The term “order” encompasses “any decision, finding and award, direction, rule, regulation, or other determination arrived at by the director or an administrative law judge.” Section 8-40-201(15), C.R.S. 2002. Thus, the general word “order,” as used in § 8-43-301(2), incorporates the specific concept of a supplemental order created by § 8-43-301(6).
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s Supplemental Procedural Order dated September 19, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Bill Whitacre
NOTICE
An action to modify or vacate this Order may be commenced in the ColoradoCourt of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing apetition for review with the Court, within twenty (20) days after the datethis Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307,C.R.S. 2002. The appealing party must serve a copy of the petition uponall other parties, including the Industrial Claim Appeals Office, whichmay be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO80202.
Copies of this decision were mailed ______January 6, 2003 _______ to the following parties:
Nancy Sanchez-Ortega, 712 N. Tejon, Colorado Springs, CO 80903
Central Uniform Linen, P.O. Box 2289, Colorado Springs, CO 80901
Lori Olmstead, IME Coordinator, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail
Heather Horning, Liberty Insurance Company, 10770 E. Briarwood Ave., #200, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
By: _________A. PENDROY_________________________________________