Opinion
W. C. No. 4-475-267.
September 24, 2007.
ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated May 29, 2007, that determined the claimant could proceed with a Division-sponsored independent medical examination (DIME) for purposes of determining the claimant's impairment rating, but not on the issue of maximum medical improvement (MMI). We dismiss the petition to review without prejudice.
The claimant suffered an admitted back injury in 2001. The claimant underwent a lengthy course of treatment, but by 2005 had still not been put at MMI. The insurer sought a DIME under the auspices of § 8-42-107(8)(b)(II), C.R.S. 2007, which was designed by the legislature to deal with situations where no authorized treating physician (ATP) had placed the claimant at MMI in 18 months. Section 8-42-107(8)(b)(II), allows a DIME without MMI if at least18 months has passed since the date of injury; the ATP had been requested to, but did not, find the claimant at MMI; and a physician other than the ATP had found MMI. Stassines v. Albertson's Inc., W. C. No. 4-438-212 (November 6, 2003). The parties agreed to select Dr. Gellrick as the DIME physician. Dr. Gellrick found the claimant was at MMI and determined the claimant had a 14 percent whole person impairment rating. The respondents filed an admission based on Dr. Gellrick's rating. The claimant filed a motion to strike the admission contending Dr. Gellrick was not in a position to issue a binding opinion on impairment. The claimant's motion was granted and the claimant was examined by the ATP who assessed a 13 percent whole person impairment rating plus three percent for psychological impairment. The respondents filed an admission based on the ATP's impairment rating and the date of MMI as determined by Dr. Gellrick. The claimant filed a Notice and Proposal to Select a DIME. The respondents filed a motion for summary judgment arguing that the clamant was entitled to "one DIME" only and the 18-month DIME performed by Dr. Gellrick constituted that DIME. The claimant filed a cross-motion for summary judgment contending that an 18-month DIME is limited to the issue of MMI.
The ALJ ordered that the claimant could proceed with the selection of a DIME for purposes of determining the claimant's impairment rating, but the claimant was not entitled to a second opinion on MMI from a follow-up DIME physician. The claimant appeals contending the ALJ erred in limiting the new DIME to the issue of impairment rating only and excluding the issue of MMI. The respondents argue that the order appealed from is interlocutory.
Section 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). An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles, our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
Here, the ALJ ordered that the claimant could proceed with the DIME for purposes of determining the claimant's impairment rating, but not on the issue of MMI. The ALJ's order does not order any party to pay benefits or denying the claimant any benefit or penalty. See Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003) (order striking claimant's request for DIME and ordering Division to proceed with respondents' request for DIME not final and reviewable). In our view the order is not reviewable at this time.
The respondents request an award of attorney fees contending that the claimant's petition to review is groundless and frivolous. We deny the request for attorney fees. Although § 8-43-301(14), C.R.S. 2007 authorizes an award of attorney fees and costs under certain circumstances, such an award is not appropriate if there is a reasonable basis for the appeal. BCW Enterprises Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). We agree with the respondents' contention that the order under appeal is interlocutory, but we do not view the claimant's arguments on appeal to be frivolous.
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated May 29, 2007, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
WAYNE J HUBER, 3274 CANYON HEIGHTS RD, PUEBLO, CO, 81005 (Claimant).
JOBSON PUBLISHING, LLC, Attn: LORRAINE ORLANDO, C/O: VICE PRESIDENT, HUMAN RESOURCES, 100 AVENUE OF THE AMERICAS, NEW YORK CITY, NY, 10013 (Employer).
PACIFIC INDEMNITY COMPANY, Attn: SCOTT DANFELSER, C/O: CHUBB GROUP OF INSURANCE COMPANIES, P O BOX 6520, ENGLEWOOD, CO, 80155-6520 (Insurer).
BUESCHER, GOLDHAMMER, KELMAN DODGE, P.C., Attn: SHELLEY P DODGE, 1563 GAYLORD STREET, DENVER, CO, 80206 (For Claimant).
MCELROY, DEUTSCH, MULVANEY CARPENTER, LLP, Attn: JEFFREY M. ERICKSON, 1700 BROADWAY, SUITE 1900, DENVER, CO, 80290-1901 (For Respondents).