W. C. Nos. 4-432-707, 4-432-707.Industrial Claim Appeals Office.
March 16, 2007.
ORDER
The respondent seeks review of an order of Administrative Law Judge Broniak (ALJ) dated October 4, 2006 that denied it the opportunity to seek a follow-up Division-sponsored independent medical examination (DIME). We dismiss the petition to review without prejudice.
This matter came before the ALJ on competing motions for summary judgment as to whether the respondent could proceed to obtain a follow-up DIME pursuant to W.C. Rule of Procedure 11-7, 7 Code Colo. Reg. 1101-3 at 49. The ALJ entered the following findings of fact. The claimant sustained in an admitted injury in 1999. Dr. Winter and Dr. Toby provided her primary treatment. No authorized treating physician has placed the claimant’s condition at maximum medical improvement (MMI). In 2005 the respondent sought a DIME on the basis that the claimant had not reached MMI within 18 months of her injury as authorized by § 8-42-107(8)(b)(II), C.R.S. 2006. On September 1, 2005, the DIME physician opined that the claimant had not reached MMI and recommended up to 12 months of additional treatment. The respondent did not contest the DIME physician’s determination. The respondent obtained an opinion from an independent medical examiner on June 15, 2006 that the claimant had reached MMI on June 19, 2003. The respondent asked Dr. Winter on July 3, 2006 whether the claimant had reached MMI. Two days later and prior to receiving any response from Dr. Winter, the respondent requested a follow-up DIME. The
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Division of Workers’ Compensation held the follow-up DIME in abeyance pending the ALJ’s corresponding adjudication of this matter.
The ALJ considered the parties’ motions for summary judgment on the issue of whether the respondent was entitled to a follow-up DIME under the circumstances. It appears from her order that the ALJ concluded that an authorized treating physician would need to place the claimant at MMI before a follow-up DIME is appropriate. The ALJ determined that the respondent was not entitled to a follow-up DIME.
The respondent argues on appeal that it is entitled to a follow-up DIME, ostensibly to obtain a determination of whether the claimant is at MMI. However, we conclude that the ALJ’s order is not final and reviewable. Under § 8-43-301(2), C.R.S. 2006, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a 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 review. Nankin Co. v. Embanks, 775 P.2d 88 (Colo.App. 1989). We have issued numerous decisions holding that orders related to DIME requests are interlocutory. See, e.g., Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000); Lozano v. Front Range Rebar Co., Inc., W.C. No. 4-285-320 (August 3, 1998).
The ALJ’s order under consideration does not effectively award or deny benefits. Cf. Meza v. Conagra Beef Company, W.C. No. 4-444-220 (December 11, 2000). We therefore decline to consider the respondent’s appeal at this time.
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ=s order dated October 4, 2006, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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Joyce Jankowski, 10842 Trailriver Pass, Littleton, CO 80127
Jefferson County Public Schools, Lissa Pierce, PO Box 4001, Golden, CO 80401-0001
Brauer Buescher Goldhammer Kelman Dodge PC, Joseph Goldhammer, Esq., 1563 Gaylord St, Denver, CO 80206 (For Claimant)
Ritsema Lyon, PC, T. Paul Krueger II, Esq., 999 18th
St., Ste 3100, Denver, CO 80202 (For Respondents)
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