Opinion
W.C. No. 4-704-485.
January 11, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated September 26, 2007 that denied and dismissed his request for a division-sponsored independent medical examination (DIME). We reverse and remand this matter for further proceedings.
The ALJ's findings of fact are summarized as follows. The respondents filed a final admission of liability (FAL) on March 8, 2007 admitting liability for an industrial injury that the claimant sustained on October 30, 2006. The respondents admitted an average weekly wage of $320; however, the issue of average weekly wage was subsequently set for hearing. The parties agreed to an average weekly wage of $360 and the hearing was vacated. The respondent insurer then filed an amended FAL identical to the previous FAL except for the changed amount of the claimant's average weekly wage. The insurer filed the amended FAL on April 5, 2007. The claimant filed an objection to the amended FAL on April 12, 2007 and requested a DIME.
The ALJ concluded that the claimant's failure to object within 30 days of the date of the initial FAL effectively closed the case as to the issues admitted in the FAL. Because the amended FAL filed within 30 days of the initial FAL addressed only the issue of average weekly wage, the ALJ determined that the claimant was barred from seeking a DIME. The record indicates that the initial FAL filed on March 8, 2007, admitted for temporary total disability benefits from October 31, 2006 through February 28, 2007, zero percent impairment concerning permanent partial disability benefits, and medical benefits. Exhibit A.
We first address the issue of whether the ALJ's order is final and reviewable. Pursuant to § 8-43-301(2), C.R.S. 2007, 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).
However, we have reviewed orders denying and dismissing a claimant's request for a DIME when the effect of the order is to preclude the claimant from obtaining additional benefits or ending a claim. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) (PALJ's settlement order effectively concludes claim and is reviewable); Meza v. Conagra Beef Co., W.C. No. 4-444-220 (December 11, 2000) (order denying DIME and prohibiting additional permanent partial disability benefits considered final and reviewable). In this case, the initial FAL admitted for an impairment rating of zero percent, thereby precluding the claimant from seeking additional permanent partial disability benefits without obtaining a DIME. See § 8-42-107(8)(c), C.R.S. 2007 (hearing on medical impairment rating shall not take place until the finding of DIME has been filed with the division of workers' compensation). We conclude that under the circumstances, the ALJ's order is final and reviewable. See Daniels v. WCM Industries, W.C. No. 4-456-886 (March 14, 2002) (ALJ's order concluding no jurisdiction to review PALJ's order striking DIME effectively denied claimant additional permanent partial disability benefits because of her failure to procure DIME).
The claimant asserts that the initial FAL was nullified by the subsequent FAL to which he objected. We conclude that, under the circumstances, the ALJ erred when he determined that the claim was effectively closed by the initial FAL when the claimant failed to object to it within 30 days. Section 8-43-203(2)(b)(II), C.R.S. 2007, provides as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing. (Emphasis added).
Accordingly, the failure to file a written objection to a FAL within 30 days of the date the FAL closes the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821(Colo.App. 2001).
In this case, the insurer filed the initial FAL on March 8, 2007. It subsequently filed an amended FAL on April 5, 2007 and the claimant filed his objection and request for a DIME on April 12, 2007. It therefore appears from the ALJ's findings that the insurer filed the amended FAL prior to the 30-day time period for objecting to the initial FAL. It further appears that the claimant objected to the amended FAL within 30 days from the second FAL. Under these circumstances, we conclude that this matter is controlled by the Colorado Court of Appeals' recent opinion in Leewaye v. Industrial Claim Appeals Office, P.3d (Colo.App. No. 06CA2264, Nov. 29, 2007). In Leewaye, the court determined that "[although issues raised in an FAL automatically close if not contested," a claimant could be "confused by the apparently overlapping objection periods" when an insurer filed an FAL and then filed a second FAL within the next 30 days. Slip op. at 10. The court therefore concluded that the claimant was not prevented from seeking permanent partial disability benefits notwithstanding the fact that the second FAL addressed only the duration of temporary total disability benefits.
In this case the insurer filed an FAL admitting for temporary disability benefits, but no permanent partial disability benefits and, within the time period for the claimant to object to the FAL, the insurer filed another FAL addressing only the issue of average weekly wage. The claimant objected to the second FAL within 30 days and sought a DIME. We do not find any significant differences between the factual findings in this case and those in the case of Leewaye, which was published after the parties briefed this matter. Accordingly, we conclude that the ALJ erred in denying and dismissing the claimant's request for a DIME.
IT IS THEREFORE ORDERED that the ALJ's order dated September 26, 2007 is reversed, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
MADRIN MIRANDA, COLO SPGS, CO, (Claimant).
HIGH COUNTRY, LLC, PALMER LAKE, CO, (Employer).
ESIS-ACE COMPLETE, Attn: MICHELLE WIDMER, PORTLAND, OR, (Insurer).
ALEXANDER AND RICCI, PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLO SPGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: HOLLY M BARRETT, ESQ., DENVER, CO, (For Respondents).
ESIS, Attn: MICHELLE WIDMER, TAMPA, FL, (Other Party).