W.C. No. 4-481-275Industrial Claim Appeals Office.
November 1, 2002
ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated May 28, 2002. We dismiss the petition to review without prejudice.
The claimant alleged he suffered an industrial injury in November 2000 due to the inhalation of dust and airborne particles from lead paint and wood. The respondents filed a Notice of Contest but referred the claimant to Dr. Noel for treatment. Dr. Noel placed the claimant at maximum medical improvement (MMI) on November 27, 2000, with no permanent impairment.
The claimant filed an Application for Hearing on the issues of compensability, medical benefits, MMI, and temporary disability benefits. The claimant also applied for a Division-sponsored independent medical examination (DIME) to be paid by the respondents because the claimant alleged he was indigent.
Section 8-42-107.2 governs the procedure for requesting a DIME. Under § 8-42-107.2(2)(a)(I)(A), C.R.S. 2002, the claimant’s time to request a DIME commences when the respondents file a final admission of liability that includes an impairment rating. Because the respondents had not yet filed any admission of liability in the claim, the ALJ determined the claimant’s request for a DIME was premature. Further, the ALJ determined a DIME physician’s evaluation was not entitled to any special weight on the question of whether the claimant suffered a compensable injury. Therefore, the ALJ denied, without prejudice, the claimant’s request for a DIME prior to the hearing on compensability. The claimant appealed that order.
On review the claimant contends, inter alia, the ALJ erroneously found that § 8-42-107.2 precluded him from obtaining a DIME prior to a determination on the issue of compensability. The respondents contend the ALJ’s order is interlocutory and not currently subject to review. We agree with the respondents.
Section 8-43-301(2), C.R.S. 2002, provides that a 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 require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994); Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). Orders which determine liability for benefits without determining the amount of benefits are also interlocutory under the statute. See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
The claimant contends the ALJ’s order is final because it denies his right to an immediate DIME and forecloses him from “promptly” challenging the MMI findings of Dr. Noel. Further, the claimant contends the ALJ’s order denies temporary total disability benefits after MMI and whole person permanent impairment benefits.
The claimant’s assertions notwithstanding, the ALJ’s order does not deny any benefit. Nor does the ALJ deny the claimant a right to a DIME to contest the treating physician’s opinions on the issues of MMI and permanent impairment. Rather, the ALJ has merely determined that it is premature to litigate those issues until it has been determined whether the claimant suffered a compensable injury.
Further, the ALJ’s legal conclusion that a DIME is premature does not, in and of itself, deny the claimant any benefit or penalty, nor does it require the respondents to pay any benefits or penalties. Thus, the correctness of the ALJ’s legal conclusion, and the remedy to be imposed if that conclusion is incorrect, must await adjudication of the claimant’s right to benefits. Abeyta v. WW Construction Management, W.C. No. 4-3456-512 (February 28, 2002).
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated March 28, 2002, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
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Bill Whitacre
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. 2001.
Copies of this decision were mailed ________November 1, 2002 __to the following parties:
William Wills, 4734 Raleigh St., Denver, CO 80212-2563
Kathy Daniel, Office Manager, Colorado Sash Door, Inc., 525 W. 66th St., Loveland, CO 80538-4670
Legal Department, Pinnacol Assurance — Interagency Mail
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Ronda K. Comings, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526-6316 (For Respondents)
BY: A. Hurtado