Summary
In Hernandez we affirmed an ALJ's dismissal of a petition to review the order of a PALJ and ruled that the order was only immediately reviewable by an ALJ in the OAC.
Summary of this case from In RR Romero v. Design Center, W.C. NoOpinion
W.C. No. 4-630-249.
October 21, 2005.
ORDER OF REMAND
The claimant seeks review of an order dated June 28, 2005 of Administrative Law Judge Friend (ALJ) dismissing the claimant's petition to review the order of Prehearing Administrative Law Judge Jaynes (PALJ), which struck the "Division IME process." The claimant contends that the PALJ lacked jurisdiction to strike the Division independent medical examination (DIME), that the ALJ erred in dismissing the claimant's petition to review, and that the PALJ erred in striking the DIME. We affirm the ALJ's dismissal of the petition to review and remand the matter for further proceedings.
No hearing was held. The record consists of an order entered by the PALJ granting the respondents' "Motion to Strike Claimant's Notice and Proposal for Division IME," the claimant's petition to review that order, the ALJ's order dismissing the petition to review, and the claimant's petition to review that order. However, both parties to the appeal have appended to their briefs a number of pleadings and other documents, many of them identical. We presume that there is no dispute regarding the authenticity of documents that were submitted by both parties and that are identical, and we presume that the ALJ reviewed the briefs and the attachments prior to transmitting the matter to us for review. Hence, although neither the PALJ's order nor the ALJ's order contains any findings of fact, and we lack fact-finding authority, we may infer from the briefs sufficient information to place the orders in a factual context in order to permit our review.
We infer from the materials appended to the briefs that the respondents filed a final admission of liability on April 14, 2005, to which the claimant objected and filed a "Notice and Proposal to Select Independent Medical Examiner." On April 20, 2005 claimant's counsel sent a letter to the employer requesting payment of an "initial lump sum" in the amount of $10,000. As the DIME process proceeded with the selection of a physician, the respondents filed a Motion to Strike Claimant's Notice and Proposal for Division IME, which was granted by the PALJ. The claimant filed a petition to review the PALJ's order with the Division of Administrative Hearings (since changed by statute to the Office of Administrative Courts, referred to herein as the OAC). In an order dated June 28, 2005, the ALJ dismissed the petition to review the PALJ's order, stating that "[o]rders of pre-hearing judges are not appealable to the Division of Administrative Hearings." The claimant petitioned to review that order dismissing the previous petition to review.
The claimant contends on appeal that the PALJ exceeded his jurisdiction in striking the notice and proposal to select a DIME physician, that the ALJ exceeded his jurisdiction in dismissing the petition to review and thereby denying the claimant review of the PALJ's order, and that, in any event, the PALJ erred in striking the DIME. Because we hold that the proper avenue for review of the PALJ's order was through an application for hearing, it is unnecessary for us to address the first and third of the claimant's contentions.
Initially, we agree with the ALJ that a petition to review the PALJ's order is not properly filed with the OAC. Section 8-43-301(2), C.R.S. 2005 provides that any party dissatisfied with a final order "may file a petition to review with the director, if the order was entered by the director, or with the administrative law judge at the place indicated in the order, if the order was entered by the administrative law judge. . . ." The statute then authorizes the director or administrative law judge to review and "rule" on a petition to review either by entering a supplemental order or by transmitting the matter to the Industrial Claim Appeals Office for its review. The statute does not provide for filing a petition to review a PALJ's order with the OAC. Accordingly, we agree that the ALJ properly dismissed the petition to review.
That does not mean, however, that the PALJ's order should not properly have been reviewed by an OAC ALJ. We conclude that the PALJ's order was properly reviewable by an OAC ALJ pursuant to an application for hearing rather than a petition to review.
We have stated in a number of orders that a PALJ's order striking a DIME is interlocutory and not subject to immediate review by the Industrial Claim Appeals Panel. See, e.g., Voelker v. Exempla Lutheran Health Center, W.C. No. 4-388-006 (January 16, 2002); Marsak v. Best Western, W.C. No. 4-416-242 (June 20, 2001); Dannaman v. Sturgeon Electric Company, W.C. No. 4-382-047 (December 13, 2000); Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000). In those orders we reasoned that § 8-43-207.5(2), C.R.S. 2005 grants the PALJs the authority to "issue interlocutory orders" and "make evidentiary rulings." Section 8-43-207.5(3) states that orders entered by PALJs are "binding on the parties," but the provision also states that "such an order shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998) the supreme court held that a PALJ's order approving a settlement agreement is final and subject to review. However, the court also stated that orders "relating to a prehearing conference" entered by a PALJ are interlocutory and not subject to appeal. The basis for the court's holding was that orders relating to a prehearing conference are reviewable at a full hearing before the director or an ALJ. In this regard the court stated that "the propriety of the PALJ's prehearing order may be addressed at the subsequent hearing." Orth, 965 P.2d at 1264. In Marsak we stated that "[r]elying on Orth, we have previously concluded that a PALJ's order which strikes a DIME request under § 8-42-207.2(2), is subject to review by an Administrative Law Judge in a subsequent hearing and thus, is interlocutory." Marsak v. Best Western, supra. We adhere to our previous conclusions.
Here, the claimant may request review by an ALJ of the propriety of the PALJ's order dated June 9, 2005. Moreover, we note that this disposition is especially apposite to this particular case, because resolution of the issue may well involve the taking of evidence and the entry of factual findings. Although the PALJ's order does not state the legal grounds for striking the DIME, we presume that it was based upon the facts asserted in the motion, that the request for a lump sum worked a waiver of the right to challenge the final admission. The question of waiver is usually one of fact for resolution by the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo.App. 1988). Hence, if either party elects to present factual testimony or evidence, the hearing will provide an opportunity to do so. Apart from our holding that the PALJ's order is properly reviewable at a hearing, we should not be understood as expressing any opinion concerning the proper outcome of any issue raised below.
IT IS THEREFORE ORDERED that the ALJ's order dated June 28, 2005, is affirmed insofar as it dismisses the petition to review the PALJ's order dated June 9, 2005, and,
IT IS FURTHER ORDERED that the matter is remanded for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun ____________________ Thomas Schrant Douglas Hernandez, Denver, CO, Safeway, Inc., Denver, CO, Debbie Dunst, Safeway, Inc., T.A., Denver, CO, Neil D. O'Toole, Esq., Denver, CO, (For Claimant).Douglas A. Thomas, Esq. and M. Kim McGarvie, Esq., Greenwood Village, CO, (For Respondent).