W.C. No. 4-531-632.Industrial Claim Appeals Office.
August 27, 2003.
ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which denied the respondents’ request to “nullify” the selection of a Division-sponsored independent medical examination (DIME) physician. We dismiss the petition to review without prejudice.
The pertinent facts are essentially undisputed. A treating physician placed the claimant at maximum medical improvement (MMI) in May 2002. The respondents then filed a final admission of liability. The claimant timely objected to the final admission and requested a DIME on the issue of MMI.
The Division of Workers’ Compensation (Division) appointed four different DIME physicians. However, for various reasons, an employee of the Division determined that the first three appointees should not complete the DIME. The fourth physician completed the DIME and issued a report which was received by the Division in September 2002.
The respondents sought a hearing contending that the fourth DIME physician was selected in violation of the applicable rules of procedure and the report is void. However, in an order dated March 12, 2003, the ALJ denied the respondents’ request to “nullify” the DIME and reserved all other issues for future determination.
The respondents filed a petition to review and brief in support arguing that the selection of the fourth DIME physician violated the applicable rules of procedure and their constitutional right to due process of law. We dismiss the petition to review without prejudice.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied with an order 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.” Orders which did not meet these criteria are interlocutory and not subject to immediate review. Natkin Co. Eubanks, 775 P.2d 88
(Colo.App. 1989).
The respondents assert the ALJ’s order in this case is final because “if” the respondents are ordered to accept the DIME physician’s findings concerning MMI the respondents “will have to continue to pay temporary benefits.” We reject this argument.
In Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003), the Court of Appeals held that an order striking the claimant’s request for a DIME as premature, and permitting the respondents’ request for a DIME to proceed, was interlocutory. The court noted that if the claimant ultimately disagrees with the findings of the DIME physician chosen at the respondents’ behest, the claimant “may still present the testimony of the first physician [DIME physician selected at claimant’s behest] in an attempt overcome the second [DIME] physician’s opinion.” The court concluded by stating that “if the division enters an order that determines the issues of MMI and claimant’s impairment and if claimant disagrees with the Panel’s conclusions, this court would then have jurisdiction to consider the various arguments that claimant now makes.”
Consistent with the opinion of the Court of Appeals expressed i Ortiz, we have held that a DIME serves a preliminary evidentiary function on the issues of MMI and medical impairment, and that orders determining which party is liable to pay for a DIME are interlocutory. Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996).
Applying these principles here, we conclude the ALJ’s order in this case is not currently final and reviewable. The ALJ’s order does not require the respondents to pay any temporary disability, permanent disability, or medical benefits, nor does it deny the claimant any such benefits. To the contrary, the ALJ’s order expressly reserves all substantive issues including the amount of benefits to be awarded, if any. The order has the sole effect of determining that the report of the fourth DIME physician must be accorded presumptive evidentiary weight on the issues of MMI and permanent impairment, subject to the respondents’ right to overcome the DIME physician’s opinions by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). In this sense, the ALJ’s order is no different than any evidentiary ruling by an ALJ; and evidentiary rulings have traditionally been treated as interlocutory. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000). Consequently, the ALJ’s order is not subject to immediate review, and the respondents arguments may be raised contemporaneously with any appeal from an order granting or denying benefits. Ortiz v. Industrial Claim Appeals Office, supra.
We note that we have considered the claimant’s brief in opposition to the petition to review. The claimant stated good cause for filing the brief out of time, and the respondents filed no objection to consideration of the brief.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated March 12, 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 August 27, 2003 by A. Pendroy.
Jennifer Turner, 952 Honeysuckle Dr., Pueblo West, CO 81007
Dan Boyd, Valley Engineering, Inc., 30080 Danny Rd., Pueblo, CO 81006
Farmer’s Insurance Exchange, c/o Cathleen Newell, Mid-Century Insurance Company, 7353 E. Hampden Ave., #300, Denver, CO 80231
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)