Opinion
W. C. No. 4-596-129 4-696-810.
December 12, 2007.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated June 29, 2007, that determined she was without authority to conduct a hearing on the issues raised in the case until completion of the DIME. We set the order aside and remand for entry of a new order.
The ALJ's pertinent findings of fact are as follows. On October 31, 2003, the claimant suffered an admitted injury to his right foot in W.C. No. 4-596-129. On July 24, 2006, the claimant alleged that he suffered an injury to his low back in W.C. No. 4-696-810. The claimant alleges he was repairing a dishwasher at the time of the latter injury. On October 11, 2006, Dr. Stone placed the claimant at maximum medical improvement (MMI) for the 2003 admitted injury to his foot. The claimant applied for a Division-sponsored independent medical examination (DIME). At a prehearing conference, the two claims were consolidated for purposes of the hearing and the claimant's motion to hold the DIME in abeyance until after the scheduled hearing was granted. The issues raised at the scheduled hearing were whether the claimant suffered a new injury in 2006 or whether his alleged back injury was related to the foot injury. The claimant contended that the hearing should go forward because, among other issues, the issue of whether the authorized treating physician placed the claimant at MMI needed to be resolved at the hearing. However, the ALJ found that there was no evidence presented concerning a dispute over differing physicians' opinions about whether the claimant had reached MMI. The respondents on the 2003 admitted injury argued that because a DIME had been requested the ALJ lacked authority to hold a hearing until the DIME is completed. The ALJ agreed with the respondents and concluded that she was without authority to conduct a hearing on the issues raised in the case until completion of the DIME.
On appeal, the respondents on the 2006 claimed injury contend the ALJ erred in deciding she lacked jurisdiction to decide whether the claimant sustained a compensable injury on July 24, 2006. We agree.
Under § 8-42-107(8)(c), C.R.S. 2007, the DIME physician's opinion is entitled to special weight on the issues of MMI and permanent partial disability. Hence, a party seeking to overcome the DIME's opinion regarding either MMI or permanent impairment must do so by clear and convincing evidence. Because the rating of impairment necessarily requires a physician to determine all losses caused by the industrial injury, the court in Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), concluded that the DIME physician's determination of whether an impairment is caused by the industrial injury is also governed by the clear and convincing evidence standard. However, the courts have held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of MMI and medical impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001); Stubbs v. Choice Hotels International, W. C. No. 4-299-627 (November 03, 2003).
Here the ALJ, citing Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998) determined that once an authorized treating physician has placed the claimant at MMI, the ALJ may not conduct further proceedings on the issue of MMI until the DIME physician's finding is filed. The ALJ further determined that an essential issue was the cause of the claimant's low back pain in 2006 and a DIME would necessarily address the issue of the cause of the low back pain.
We recognize that the case principally involves a dispute regarding the cause of the claimant's low back pain and it is true that the DIME process, which, controls the determination of MMI, also includes the issue of which conditions are or are not related to the compensable injury. Cordova v. Industrial Claim Appeals Office, supra. (MMI inherently requires determination of cause of claimant's condition). However, the ALJ has jurisdiction to determine whether a compensable injury has occurred in the first instance. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Toledo-Zavala v. Excel, W. C. Nos. 4-534-398, 4-534-399 (November 14, 2003); Lapean v. Aon Innovative Solutions, W. C. Nos. 4-474-545; 4-540-403 (July 21, 2003); Fuller v. Marilyn Hickey Ministries W.C. No. 4-588-675 (September 01, 2006). Therefore, even though the ALJ could concededly not proceed on the issue of MMI until the DIME physician's report was filed, she did not lack jurisdiction to decide the compensability of the 2006 claimed injury.
The claimant contends that the order is interlocutory because the ALJ's order did not award any benefits and only required that a DIME take place prior to the hearing. Under the peculiar circumstances of this case, we disagree.
We acknowledge that § 8-43-301(2), C.R.S. 2007 provides that any 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." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute, the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). Consistent with this rule, orders which resolve compensability favorably to the claimant without awarding or denying benefits or penalties are interlocutory. Natkin Co. v. Eubanks, supra; Dominguez v. Tyco International, LTD., W. C. Nos. 4-558-270 4-508-494 (June 21, 2004).
However, the circumstances here are unusual in that the DIME process has been initiated in the admitted claim while at the same time compensability is unresolved in the contested claim which has been joined for purposes of hearing. The ALJ's order effectively denies the claimant and the respondents on the 2006 claim a determination of the compensability issue. It is thus tantamount to a denial of benefits and is therefore presently reviewable. The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). However, an order may be final and reviewable pursuant to § 8-43-301(2) if its effect is to terminate the litigation and deny relief. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, supra. The resolution of the issue of compensability could terminate litigation on the 2006 claim and therefore is reviewable. See Maloney v. Ampex Corp., W.C. No. 3-952-034 (February 27, 2001); Stinson v. Duck Co., W.C. No. 4-271-437 (January 26, 1998) (where ALJ struck an application for hearing on grounds the claim was closed by a final admission, the order was not interlocutory where the claimant alleged the claim had not been properly closed and, therefore, it was unnecessary for him to file a petition to reopen to obtain additional benefits). Accordingly, we conclude that we have jurisdiction to review this order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 29, 2007 is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
DENNIS PALMER, DENVER, CO, (Claimant).
LIBERTY MUTUAL INSURANCE, Attn: MARY ANDERS, IRVING, TX, (Insurer).
KEVIN C SMITH, ATTORNEY AT LAW, P.C., Attn: KEVIN C SMITH, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: ERIC POLLART, ESQ/SUZANNE GALL, ESQ, GREENWOOD VILLAGE, CO, (For Respondents).
LIBERTY MUTUAL INSURANCE, Attn: DAVID KROLL, ESQ., DENVER, CO.
SEDGWICK CMS, Attn: JASON BOCK, GREENWOOD VILLAGE, CO.