W.C. No. 4-483-443.Industrial Claim Appeals Office.
October 29, 2003.
ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) insofar as it determined that the claim for mental impairment is limited to 12 weeks of benefits pursuant to § 8-41-301(2)(b), C.R.S. 2002, and is not subject to the exception for a crime of violence. We dismiss the petition to review without prejudice.
This case proceeded to hearing on two issues. The first issue was whether either party timely requested a Division-sponsored independent medical examination (DIME). The second issue was whether benefits for the claimant’s alleged mental impairment are limited to 12 weeks inclusive of temporary disability benefits, or whether the 12 week limitation is inapplicable because the claimant was subjected to a crime of violence.
The ALJ ruled the claimant filed a timely notice and proposal to select a DIME physician, and that determination has not been appealed. The ALJ further ruled the claimant was not subjected to a “crime of violence” within the meaning of § 8-41-301(2)(b) because the nine year old perpetrator could not form the requisite criminal intent. Therefore, the ALJ ruled the claimant is entitled to proceed with her application for a DIME and that all issues not determined by the order are reserved for future determination.
On review, the claimant contends the ALJ erred in ruling the 12 week limitation on mental impairment benefits applies because the claimant was not subjected to a “crime of violence.” We conclude the ALJ’s ruling is interlocutory and not subject to immediate review.
Section 8-43-301(2), C.R.S. 2002, provides that any dissatisfied party may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” The purpose of this provision is to avoid piecemeal litigation of workers’ compensation claims BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
Orders which do not satisfy one of the finality criteria established in § 8-43-301(2) are interlocutory and not subject to immediate review. Natkin Co. V. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one which finally disposes of the issue presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). Orders which contemplate additional litigation concerning an issue are interlocutory. See Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002).
Here, the ALJ’s order obviously does not require the respondents to pay any benefits. Further, we conclude the order does not constitute a denial of mental impairment benefits because the issue of the respondents’ liability for such benefits has not been finally adjudicated. Indeed, the claimant requests us to engage in the type of piecemeal review that § 8-43-301(2) was designed to prevent.
The applicability of the 12 week limitation on mental impairment benefits and corresponding exception for crimes of violence becomes relevant only if the claimant establishes that she has sustained any ratable mental impairment. Proof of the existence of permanent mental impairment is subject to the DIME process and may not be established until the DIME is complete. Once the DIME is complete, either party may seek to overcome the DIME physician’s rating by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2002; Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
It follows that there has been no final determination of the claimant’s entitlement to mental impairment benefits, and resolution of that issue is dependent on completion of the DIME process and any subsequent attempt to overcome the DIME physician’s rating. The ALJ’s ruling that potential mental impairment benefits are subject to the 12 week limitation
contained in § 8-41-301(2)(b) is interlocutory because the claimant has yet to establish that she suffered any compensable mental impairment at all. Cf. Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003) (order striking claimant’s request for a DIME was not final and reviewable where the claimant was entitled to undergo a DIME requested by the respondents and contest the DIME physician’s rating if the claimant ultimately disagreed with it). Put another way, the ALJ’s ruling is purely advisory since its legal relevance is dependent on proof of ratable mental impairment, and the existence of such impairment is currently speculative. We cannot say the ALJ’s order has the effect of denying the claimant any benefits since the claimant has not proven entitlement to any benefits. The ALJ’s order expressly reserves determination of issues not decided, and one of those issues is the existence of permanent mental impairment. Compare Bralish v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1236, June 5, 2003) (court considered applicability of crime of violence exception where respondents admitted existence of permanent mental impairment but denied liability based on 12 week limitation).
We note the claimant’s brief also refers to an order of ALJ Friend which denied a motion for summary judgment. This order is also interlocutory and not subject to review. See Provo v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated June 3, 2003, 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, 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 Arapahoe, 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. 2002.
Copies of this order were mailed to the parties at the addresses shown below on October 29, 2003 by A. Hurtado.
Frances A. Tonjes, 8563 E. Monmouth Pl., Denver, CO 80237
Aurora Public Schools, Adams-Arapahoe School District 28J, 15701 E. 1st Ave., #109, Aurora, CO 80011
Joint School District Workers Compensation, c/o Vicki Edgar, G. E. Young, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Rebecca Greben, IME Coordinator, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Anne Smith Myers, Esq. and Michelle N. Young, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)