Opinion
W.C. No. 4-626-271.
November 21, 2005.
ORDER
The claimant seeks review of an order dated August 24, 2005 of Prehearing Administrative Law Judge Jaynes (PALJ) that denied a motion for reconsideration of a previous order striking a Division-sponsored independent medical examination (DIME). We dismiss the petition to review.
No hearing was held. Apparently, the respondents filed a motion to strike the claimant's DIME, on the ground that the appointment was not set within the time provided by Rule of Procedure XIV(L)(3)(d). The PALJ granted the motion and entered an order dated August 10, 2005, striking the DIME. The claimant filed a motion requesting reconsideration of the order, making factual assertions in support of the request for reconsideration. By order dated August 24, 2005, the PALJ denied the motion to reconsider. The claimant filed a petition to review the order denying reconsideration. The petition to review is dated September 16, 2005, and although it includes a certificate of mailing, the certificate does not state a date on which it was served or mailed, nor is it signed.
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., Hernandez v. Safeway, Inc., W.C. No. 4-630-249 (October 21, 2005); 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.
Because they were interlocutory, the PALJ's orders striking the DIME and denying reconsideration were only properly reviewable by an OAC ALJ pursuant to an application for hearing.
We note that ordinarily it would be necessary to remand this matter for a determination whether the petition to review was filed in a timely manner. However, because we hold that a petition to review is not the proper procedure under which to obtain review of the PALJ's order, the timeliness of that filing is not relevant to our determination. Because dismissal of the petition to review is the proper result in either case, it is unnecessary for us to remand the matter to determine whether the petition to review was timely filed. Even if it were not timely filed, we would have jurisdiction to dismiss the petition to review, which is the result here in any event.
IT IS THEREFORE ORDERED that the petition to review is dismissed.
INDUSTRIAL CLAIM APPEALS PANEL _____________________ Curt Kriksciun _____________________ Thomas Schrant Gael Rhodes, Denver, CO, Sherry Wieseler, Frontier Airlines, Aurora, CO, Insurance Company of Pennsylvania, c/o Tina Gustafson, AIG Claim Services, Phoenix, AZ, DIME Unit, Division of Workers' Compensation — Interagency Mail, David R. Medina, Esq., Denver, CO, (For Claimant).Kyle L. Thacker, Esq., Denver, CO, (For Respondents).