Opinion
W.C. No. 4-415-403
August 5, 2002
ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ Felter) dated June 12, 2001, which closed the claim for failure to prosecute. The claimant also seeks review a March 7, 2000 order of ALJ Henk and a January 26, 2001 order of Prehearing ALJ Jaynes (PALJ). We reverse the June 12, 2001 order and dismiss the remaining appeal for lack of a final order.
The claimant suffered an admitted injury on December 29, 1998. Relying on Dr. Fall's opinion that the claimant reached maximum medical improvement (MMI), the respondents filed a Final Admission of Liability. On March 7, 2000, ALJ Henk determined Dr. Fall is an authorized treating physician for purposes of determining MMI. All other issues were reserved for future determination.
Thereafter the claimant requested a Division-sponsored independent medical examination (DIME) to challenge Dr. Fall's finding of MMI. However, after notifying the Division of Workers' Compensation that she was unable to pay the cost of the DIME, the claimant did not appear at the DIME appointment. When the claimant did not reschedule the DIME, the respondents argued the claimant waived her right to a DIME and requested an order closing the claim. On January 3, 2001, the respondents' request was denied.
On January 26, 2001, the PALJ ordered the claimant to reset the DIME within 60 days. The claimant failed to reset the DIME. Consequently, the respondents filed a Petition to Close the Claim for Failure to Prosecute. The claimant did not respond to the Petition.
ALJ Felter found the claimant's failure to prosecute the claim and failure to comply with the January 26 order established good cause to close the claim. Therefore, on June 12, 2001, ALJ Felter granted the Petition to Close. This appeal followed.
I.
On review, the claimant contends ALJ Felter erroneously granted the Petition to Close. We agree.
Section 8-43-207(1)(n), C.R.S. 2001, authorizes an ALJ to dismiss all unresolved issues, upon 30 days notice to all parties, "for failure to prosecute the case unless good cause is shown why such issues should not be dismissed." The statute adds that failure to prosecute means "no activity by the parties in the case for a period of at least six months." (Emphasis added).
Dismissal of a claim for lack of prosecution is discretionary, and we may not interfere with an ALJ's order unless an abuse is shown. Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994). An abuse is shown where the ALJ's order is unsupported by the evidence or contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) ; Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
The respondents contend that under Rule VIII(D)(2), 7 Code Colo. Reg. 1101-3 at 23 the claimant's failure to respond to the Petition to Close allowed ALJ Felter to consider the Petition confessed. We disagree.
Rule of Procedure VIII (D)(1), provides that a "motion for entry of a procedural order must be submitted with a separate, properly captioned, proposed order." (Emphasis added.) Subsection (D)(2) provides that if no response to the motion is filed within 10 days "the motion may be deemed confessed." It is apparent from subsections (1) and (4) of Rule of Procedure VIII (D), that the rule applies to procedural orders, not substantive orders. Cf. Burks v. Rainbo Bread, W.C. No. 4-121-222 (June 22, 1993).
The respondents' Petition to Close was substantive and not procedural since it sought to foreclose the claimant's entitlement to further benefits. Consequently, Rule VIII(D) is not applicable.
Instead, the claim is governed by Rule X (A)(2)(b), 7 Code Colo. Reg. 1101-3 (January 30, 1998). Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992) (rules of procedure have the force and effect of law even though they are not equivalent of statute). Rule X(A)(2) provides that when no action in furtherance of prosecution has occurred in a claim for at least 6 months, any party may file a petition to close the claim for lack of prosecution. Rule X(A)(2)(a) states that:
"Following receipt of a request to close the claim for lack of prosecution, the director will issue an order requiring the parties to show cause why the request should not be granted. A response to such order shall be filed within 30 days of the date the order was mailed." (Emphasis added)
Rule X further states that if no response is filed within 30 days of the date the order to show cause was mailed, the claim shall be automatically closed.
One obvious purpose of requiring a show cause order to be issued prior to closing a claim is to afford the claimant actual notice that her failure to respond will automatically close the claim. Cf. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996) (mailing of a Final Admission to the employer's premises is not sufficient to notify the claimant of the effect of his failure to object to the Final Admission); Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995, aff'd Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication) (where an employer seeks to terminate temporary disability benefits pursuant to a written offer of modified employment, it is required that the claimant have actual notice of the written offer of employment). This is true because due process of law requires that all parties receive notice of administrative proceedings and determinations which could result in the deprivation of a significant property interest and workers' compensation benefits are a property interest for due process purposes. See Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994); Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965).
Here, there is no evidence ALJ Felter issued a show cause order as required by Rule X(A)(2)(a). Accordingly, ALJ Felter's order closing the claim is a violation of due process and, thus, inconsistent with the applicable law. Consequently, ALJ Felter abused his discretion in closing the claim. Cornerstone Partners v. Industrial Claim Appeals Office, supra.
We also note that less than 6 months passed between the date of the PALJ's order requiring the claimant to reset the DIME and ALJ Felter's order closing the claim. It follows that the record is legally insufficient to support a finding the claimant failed to prosecute the claim as defined by § 8-43-207(1)(n) and Rule X. Therefore, we reverse ALJ Felter's order.
II.
With regard to the March 7 order of ALJ Henk and the January 26 PALJ order, we conclude these orders are interlocutory. Therefore, we must dismiss the appeals for lack of a final order.
Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. 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).
Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Based upon these principles we have repeatedly held that an order which determines a physician's "authorization" but does not award or deny payment for that physician's treatment is not a final order for purposes of appellate review. See Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997); Fernandez v. City and County of Denver, W.C. No. 4-122-784 (February 7, 1996); Churchill v. Goodyear Tire and Rubber Co., W.C. No. (April 17, 1995). We adhere to our previous conclusions.
ALJ Henk's order determined Dr. Fall is an authorized treating physician. However, ALJ Henk reserved all other issues for future determination. Furthermore, in view of our conclusion that ALJ Felter erroneously closed the claim, ALJ Henk's order is not incident to a final order, and thus, is not currently reviewable.
Similarly, in view of our conclusion that the claim is not closed, the PALJ's order requiring the claimant to reschedule the DIME is not a final order. Consequently, we dismiss the claimant's appeal of these orders without prejudice.
IT IS THEREFORE ORDERED that ALJ Felter's order dated June 12, 2001, is reversed.
IT IS FURTHER ORDERED that the claimant's petition to review ALJ Henk's order dated March 7, 2000 and the PALJ order dated January 26, 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. 2001. 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 August 5, 2002 to the following parties:
Nancy Sholund, 992 S. Dearborn Way, #4, Aurora, CO 80012
Janette Smith, Argenbright Security, 3333 Quebec St., #4090, Denver, CO 80207
Sandy Powell, c/o Frank Gates USA, P. O. Box 9300, Albuquerque, NM 87119
Zurich Insurance Company, P. O. Box 20048, Kansas City, MO 64195
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Marsha A. Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)
BY: A. Hurtado