W.C. No. 4-509-179Industrial Claim Appeals Office.
March 18, 2003
ORDER
The respondents seek review of an order of Prehearing Administrative Law Judge Klein (PALJ) dated August 30, 2002, an order of PALJ DeMarino dated October 4, 2002, and an order of PALJ Jaynes dated November 1, 2002, which struck the respondents’ application for a Division-sponsored Independent Medical Examination (DIME). We dismiss the petition to review without prejudice.
The claimant alleged a work-related injury on June 22, 2001. The respondents denied liability and, consequently, the claimant filed an application for hearing on the issues of compensability, average weekly wage, medical benefits and temporary disability benefits.
On January 30, 2002, Dr. Aylor placed the claimant at maximum medical improvement with 13 percent whole person impairment. The respondents requested a Division-sponsored independent medical examination (DIME) by filing a Notice and Proposal to Select an Independent Medical Examiner consistent with the requirements of § 8-42-107.2(2)(b), C.R.S. 2002. However, at the respondents’ request the DIME process was stayed until compensability of the injury was determined.
In an order dated April 15, 2002, an Administrative Law Judge (ALJ) determined the claimant suffered a compensable injury and awarded medical benefits. No appeal was taken from that order.
On August 30, 2002 PALJ Klein granted the claimant’s motion to compel the respondents to proceed with a DIME or admit liability consistent with Dr. Aylor’s permanent impairment rating within 30 days. PALJ DeMarino’s order dated October 4, 2002, denied the respondents’ motion for reconsideration. Thereafter, the respondents did not admit liability. Instead, on October 18, 2002, the respondents filed an application for a DIME. Because the application was filed more than 30 days after the date of PALJ Klein’s order, PALJ Jaynes struck the respondents’ DIME request in an order dated November 1, 2002.
Section 8-43-301(2), C.R.S. 2002, 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 do not award or deny a benefit or penalty are interlocutory and not subject to review, until they are incident to a subsequent order which awards or denies a benefit or penalty. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
Section 8-43-207.5(2), C.R.S. 2002, grants a PALJ authority to “issue interlocutory orders” and “make evidentiary rulings.” Section 8-43-207.5(3), C.R.S. 2002, 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.
Relying on Orth, we have issued a series of decisions which held that a PALJ’s order striking a claimant’s request for the selection of an DIME physician is subject to review by an ALJ in a subsequent hearing, and thus is interlocutory. See Lofgren v. Kodak Polyschrome Graphics, W.C. No. 4-445-606 (December 18, 2000); Sander v. Summit Group, Inc., W.C. No. 4-369-777
(September 27, 2000). We adhere to our previous conclusions. Consequently, we conclude that the disputed PALJs orders are interlocutory, and not reviewable until the propriety of the orders has been reviewed by an ALJ.
IT IS THEREFORE ORDERED that the respondents’ petition to review the PALJs’ orders dated August 30, 2002, October 4, 2002 and November 1, 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 theColorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, byfiling a petition for review with the Court, within twenty (20) daysafter the date this 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 thepetition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe, Tower 3, Suite350, Denver, CO 80202.
Copies of this decision were mailed March 18, 2003 to the following parties:
Harold Sandoval, 1328 W. 102nd Ave., Northglenn, CO 80260
AMS Staff Leasing, 14160 Dallas Pkwy., #700, Dallas, TX 75240
Marilyn Michotte, RSKCo Insurance Company, P. O. Box 5408, Denver, CO 80217-5408
Rick Hull, Esq., 6850 W. 52nd Ave., #100, Arvada, CO 80002-3901 (For Claimant)
Gregory K. Chambers, Esq. and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Hurtado