Opinion
W.C. No. 4-395-836 4-426-732.
September 24, 2003.
ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ Harr) which determined the claimant timely requested a follow-up Division-sponsored independent medical examination (follow-up DIME). The respondents contend that ALJ Harr erred in determining the time limits for requesting a DIME contained in § 8-42-107.2(2)(b), C.R.S. 2002, do not apply to a follow-up DIME. We dismiss the petition to review without prejudice.
The claimant sustained compensable neck injuries in June 1999. When the claimant declined to undergo a proposed medical procedure, a treating physician placed the claimant at maximum medical improvement (MMI) on July 10, 2001. The treating physician assigned an 18 percent whole person impairment rating.
The claimant requested a DIME, which was performed on October 29, 2001. The DIME physician agreed the claimant reached MMI on July 10, 2001, and assigned a 12 percent whole person impairment rating. The claimant sought a hearing to overcome the DIME physician's finding of MMI. In May 2002 ALJ Felter found the claimant failed to overcome the DIME physician's finding of MMI, but concluded the claimant was no longer at MMI because he was willing to undergo the previously recommended medical procedure.
Subsequently, it was determined that claimant was not a suitable candidate for the medical procedure, and the treating physician placed the claimant at MMI for the second time on June 25, 2002. The respondents filed a final admission of liability (FAL) terminating the claimant's temporary total disability (TTD) benefits on June 25 and admitting permanent partial disability benefits based on the 12 percent rating.
The claimant timely objected to the FAL, but did not request a follow-up DIME from the Division of Workers' Compensation (Division) until September 12, 2002. On September 23, 2002, the respondents moved to strike the claimant's request for the follow-up DIME arguing it was not filed within 30 days of the date of mailing of the FAL as required by § 8-42-107.2(2)(b). A Prehearing ALJ denied the motion by order dated October 17, 2002.
On October 16, 2002, the claimant underwent the follow-up DIME. The DIME physician opined that claimant is not at MMI because conservative measures have failed and the claimant probably needs a cervical decompression and fusion. On November 6, 2002, the DIME report was mailed to the respondents. On December 13, 2002, the respondents filed an application for hearing seeking to overcome the DIME physician's finding that the claimant is not at MMI, and raising the issue of permanent partial disability benefits.
The matter proceeded to hearing before ALJ Harr on April 10, 2003. No testimonial evidence was presented and the matter was submitted on documentary evidence. In his order dated May 19, 2003, ALJ Harr ruled the claimant's request for the follow-up DIME was timely filed because the time limits contained in § 8-42-107.2(2)(b) do not apply to a request for a follow-up DIME. ALJ Harr further ruled that the respondents' application for hearing was not timely filed under § 8-42-107.2(4), C.R.S. 2002. Therefore, ALJ Harr held the respondents are "bound" by the DIME physician's "determination that claimant has not reached MMI." All other issues were reserved for future determination.
On review, the respondents contend ALJ Harr erred in finding the time limits for requesting a DIME contained in § 8-42-107.2(2)(b) do not apply to a request for a follow-up DIME. However, we conclude the ALJ's ruling is interlocutory and not currently subject to review.
Section 8-43-301(2), C.R.S. 2002, provides that a 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." Thus, we lack jurisdiction to review orders which do not grant or deny benefits or penalties. Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003) (order striking claimant's request for DIME was not final and reviewable where DIME requested by respondents was pending and no determination of impairment had yet been made).
Here, ALJ Harr's order does not, on its face, award or deny any benefits or penalties. The order merely determines the claimant timely requested the follow-up DIME, and the respondents are "bound" by the DIME physician's finding that the claimant is not at MMI. As ALJ Harr expressly found, the DIME physician's finding that the claimant is not at MMI does not constitute a determination the claimant is entitled to undergo the surgical procedure recommended by the DIME physician. Further, the record does not indicate the respondents stipulated or conceded that a finding the claimant is not at MMI automatically requires them to reinstate TTD benefits, and the ALJ made no such finding. Thus, we infer from ALJ Harr's order that the respondents' liability for TTD and medical benefits are issues for future determination, and no benefits were awarded or denied.
Under the circumstances, ALJ Harr's order amounts to a procedural ruling concerning the evidentiary effect of the follow-up DIME. Such procedural and evidentiary rulings are interlocutory and not subject to immediate review. Thus, the respondents' petition to review must be dismissed without prejudice. Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002), cert. granted, March 24, 2003 (orders which contemplate future litigation are interlocutory); Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000) (ruling determining that evidence may be admitted despite discovery violation does not constitute final and appealable order).
IT IS THEREFORE ORDERED that the respondents' petition to review ALJ Harr's order dated May 19, 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 September 24, 2003 by A. Hurtado.
Nicholas Campbell, 124 Paris Circle, Aurora, CO 80011.
Pillow Kingdom, c/o Big Sur Waterbeds, 13333 E. 37th Ave., Denver, CO 80239.
General Insurance Company of America d/b/a SAFECO, P. O. Box 461, St. Louis, MO 63166.
DIME Unit, Tower 2, #640, Division of Workers' Compensation — Interagency Mail.
Bob L. Ring, Esq., 2550 Stover St., Bldg. C, Ft. Collins, CO 80525 (For Claimant).
Merrily S. Archer, Esq. and Douglas P. Ruegsegger, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents).