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An Order Denying an Attempt to Overcome a Division IME Physician’s Findings on MMI Only is not an Appealable Order

As documented in a previous post, the Industrial Claim Appeals Office again dismissed an appeal for lack of a final order where the Administrative Law Judge made found that the respondents failed to overcome the Division IME physician’s opinion on Maximum Medical Improvement but did not enter an order requiring the respondents to pay a specific benefit.  Shapiro v. Aspen Ski Company, W. C. No. 4-820-840 (September 30, 2013). This case again stresses the need at hearing for the litigants to seek a determination of the respondents’ liability for a particular benefit rather than just a determination of a factual question.

In Shapiro, the claimant sustained an admitted injury to his knee. The authorized treating physician recommended a total knee replacement, but also opined that the need for the total knee replacement was not causally related to the injury. Therefore, the authorized treating physician placed the claimant at Maximum Medical Improvement.  The claimant sought a Division IME, who found that the claimant was not at Maximum Medical Improvement because the need for the total knee replacement was causally related to the injury.  The respondents filed an Application for Hearing challenging the Division IME physician’s opinion that the need for the total knee replacement was causally related to the injury. At hearing, the respondents stated the issue was “the causal relationship between an admitted lateral meniscus tear and a requested total knee replacement.”

The Administrative Law Judge found that the respondents failed to overcome the Division IME physician’s findings by clear and convincing evidence, but did not award or deny any benefits. The Panel, noting that orders which do not award or deny benefits or penalties are interlocutory and not subject to immediate review, dismissed the appeal for lack of a final order. As a result, the parties now will be subject to a lengthy delay in resolving the issue of respondents’ liability for the total knee replacement. The Panel’s recent decisions make it clear that the Panel will adhere to the “final order” requirement strictly, requiring litigants specifically to request an Administrative Law Judge enter an order either awarding or denying specific medical benefits in order to ensure an appealable order.

It is not clear from the decision whether the parties or the Panel missed an opportunity for a more speedy resolution of the “final order” issue. Although the parties clearly did not request the Administrative Law Judge award or deny the total knee replacement at the commencement of the hearing, the decision does indicate that both the respondents’ position statement and their proposed order requested that the Administrative Law Judge deny and dismiss the claim for “medical benefits.”  Section 8-43-303(8) empowers the Panel to remand an order back to an Administrative Law Judge where the findings of fact are not sufficient to permit appellate review.  Because the respondents’ position statement and proposed order endorsed the issue of liability for medical benefits, but the Administrative Law Judge’s order did not make any findings on that issue, it is possible that the parties could have requested the Panel remand the case back to the Administrative Law Judge for additional findings, saving the parties the time and money associated with the lack of a final order.

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