Summary
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."
Summary of this case from In re Rhodes, W.C. NoOpinion
W.C. No. 4-416-242
June 20, 2001
ORDER
The respondents seek review of an order of Prehearing Administrative Law Judge deMarino (PALJ) which granted the claimant's motion to strike their Application for a Division Independent Medical Examination (DIME). We dismiss the appeal.
In 1999 the claimant suffered an admitted injury. In a report dated October 4, 2000, the treating physician placed the claimant at maximum medical improvement and assigned a medical impairment rating. The respondents subsequently applied for a DIME under the provisions of § 8-42-107(8)(c), C.R.S. 2000. The claimant moved to strike the application on the grounds it was not filed within the time provided by § 8-42-107.2 C.R.S. 2000. In an order dated February 28, 2001, the PALJ granted the claimant's motion. The respondents subsequently filed this appeal.
Section 8-43-301(2), C.R.S. 2000, provides that any party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty," may file a petition to review. Generally, procedural orders governing the admission or exclusion of evidence are not final and appealable. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).
Section 8-43-207.5(2), C.R.S. 2000, grants a PALJ authority to "issue interlocutory orders" and "make evidentiary rulings." Section 8-43-207.5(3), C.R.S. 2000, provides that "an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties," but further provides "such an order shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998), the court held that a PALJ's order approving a settlement agreement is a final order subject to review. However, the court distinguished an order approving a settlement from orders "relating to a prehearing conference." The court stated that orders relating to prehearing conferences are "interlocutory (i.e., not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the director or an ALJ." Id. at 1254. The court also indicated that "the propriety of the PALJ's prehearing order may be addressed at the subsequent hearing." Id. at 1254.
Relying 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. 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).
We adhere to our conclusions in Sander and Dannaman. Consequently, we conclude that the PALJ's order is interlocutory, and the propriety of the order is subject to review by an ALJ in a subsequent hearing. Therefore, the PALJ's order is not currently subject to review.
IT IS THEREFORE ORDERED that the respondents petition to review the PALJ's order dated February 28, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 20, 2001 to the following parties:
Sherri Marsak, 4776 County Road 311, Ignacio, CO 81137
Best Western/Durango Western Inn, P. O. Box 3099, Durango, CO 81302
Flosetta Canada, Hartford Fire Insurance Company, P. O. Box 22815, Denver, CO 80222
Mary Ann Donelson, Hartford Fire Insurance Company, P. O. Box 22815, Denver, CO 80222
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
BY A. Pendroy