W.C. No. 4-369-777Industrial Claim Appeals Office.
September 27, 2000
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Keck (PALJ) which struck the claimant’s Notice and Proposal to Select an Independent Medical Examiner (notice and proposal). We dismiss the petition to review without prejudice.
On March 7, 2000, the respondents mailed a final admission of liability admitting for permanent partial disability benefits based on medical impairment of 17 percent of the whole person. On April 7, 2000, the claimant mailed the notice and proposal in accordance with § 8-42-107.2(2)(b), C.R.S. 2000. The respondents then filed a motion to dismiss the notice and proposal because it was untimely under § 8-42-107.2(2)(b). The claimant filed a response alleging the respondents’ final admission was invalid under Rule of Procedure IV (N) (1), 7 Code Colo. Reg. 1101-3 at 6.02, because the respondents failed to attach a medical worksheet illustrating the treating physician’s impairment rating. The claimant further alleged the final admission was invalid because it improperly calculated the claimant’s benefits, and because the treating physician’s impairment rating did not include all elements of the claimant’s impairment. Finally, the claimant argued the notice and proposal was timely because CRCP 6 (e) added 3 days for mailing. On May 15, 2000, the PALJ entered an order striking the notice and proposal and directing that the Division independent medical examination (DIME) not go forward. The claimant then filed this appeal.
Section 8-43-301(2), C.R.S. 2000, 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. Generally, procedural orders governing the admission or exclusion of evidence are not final and appealable. See Reed v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA0084, January 20, 2000.
Section 8-43-207.5(2), C.R.S. 2000, grants a PALJ authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3), C.R.S. 2000, provides that “an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties,” but further provides “such an order shall be interlocutory.” In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998), the court held that a PALJ’s order approving a settlement agreement is a final order subject to review. However, the court distinguished an order approving a settlement from orders “relating to a prehearing conference.” The court stated that orders relating to prehearing conferences are “interlocutory (i.e. not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the director or an ALJ.” Id. at 1254. The court also indicated that “the propriety of the PALJ’s prehearing order may be addressed at the subsequent hearing.” Id. at 1254; compare Iguado v. Colorado Flagstone, W.C. No. 4-328-963 (January 26, 2000) (ALJ properly exercised jurisdiction to review evidentiary ruling of PALJ).
Here, the PALJ’s order does not itself award or deny benefits, although it may ultimately prevent the claimant from establishing the right to additional whole person impairment benefits. Section 8-42-107(8)(c), C.R.S. 2000, § 8-42-107.2(b). Further, the order is interlocutory and its propriety is subject to review by an Administrative Law Judge in a subsequent hearing. Indeed, the briefs of the parties reflect a factual dispute concerning whether or not the final admission filed with the Division actually included a worksheet.
For their part, the respondents contend the issues are moot because the claimant did not file a timely objection to the final admission of liability. This assertion was not addressed by the PALJ.
IT IS THEREFORE ORDERED that the claimant’s petition to review the PALJ’s order dated May 15, 2000, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate the 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, which may be served by mail at 1515 Araphoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2000.
Copies of this decision were mailed September 27, 2000 to the following parties:
Linda J. Sander, 12196 W. 7th Dr. #103, Golden, CO 80401
The Summit Group, 5100 S. Tennis Lane, Sioux Falls, SD 57108-2271
The Travelers Companies, Jerry McClory, P.O. Box 173762, Denver, CO 80217-3762
William J. McDonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For Claimant)
Lynda S. Newbold, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy