IN RE ARREOLA v. SERGEANTS PET PROD., W.C. No

ORDER DISMISSING APPEAL

The respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated February 29, 2008, which determined that the claim did not close by the filing of a final admission of liability. We dismiss the appeal without prejudice.

The ALJ made the following findings of fact. The respondents filed a final admission of liability (FAL) on May 3, 2002, which included a reference to "attached M-164." Attached to the FAL was a medical report on Division form M164 that indicated the claimant had reached maximum medical improvement on May 2^nd with no permanent impairment. The FAL advised the claimant of the date of maximum medical improvement and that the respondent insurer denied liability for permanent disability. The claimant did not object to the FAL.

The ALJ determined that the FAL comported with the statutory requirement that a final admission of liability be accompanied by the medical report upon which it was predicated pursuant to § 8-43-203(2)(b)(II), C.R.S. 2008. However, the ALJ concluded that the FAL failed to comply with the regulatory provision requiring that the FAL list the physician's name and the date of the report. See W.C. Rule of Procedure IV(N)(1), 7 Code Colo. Reg. 1101-3 (now codified at W.C. Rule of Procedure 5-5(A), 7 Code Colo. Reg. 1101-3 at 15). The ALJ therefore determined that the FAL failed to close the claim.

We conclude that the ALJ's order is not final for purposes of review. Section 8-43-301(2), C.R.S. 2008 states 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).

The ALJ determined that the claim remained open due to a legally insufficient FAL and removed a stay of proceedings concerning a Division-sponsored independent medical examination (DIME). In our view, the ALJ's order does not order any party to pay benefits or deny 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). The ALJ ordered the insurer to pay for the DIME appointment, but we have held that orders determining which party is liable to pay for a DIME are interlocutory. See, e.g., Leos v. Kurt Group, Inc., W.C. No. 4-231-009 (November 15, 1996) ; Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996). Thus, the ALJ's order is not presently final and reviewable, which is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).

IT IS THEREFORE ORDERED that the ALJ's order dated February 29, 2008, is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________ John D. Baird

_______________________ Thomas Schrant

VICKY ARREOLA, GREELEY, CO, (Claimant).

CNA INSURANCE, Attn: KIM HUBER, DENVER, CO, (Insurer).

SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ, GREELEY, CO, (For Claimant).

WHITE STEELE, PC, Attn: STEPHEN G SPARR, ESQ., DENVER, CO, (For Respondents).