W.C. No. 4-254-023Industrial Claim Appeals Office.
January 31, 2001
ORDER
The claimant seeks review of an order of Administrative Law Judge Gallegos (ALJ), which determined the respondents properly withdrew a request for a Division-sponsored independent medical examination (DIME), and denied the claimant’s request for a DIME to be performed by Dr. Moffett. We dismiss the petition to review without prejudice.
In June 1999, the respondents applied for a DIME on the issues of maximum medical improvement (MMI) and permanent medical impairment. The Division appointed a DIME panel of Dr. Moffett, Dr. Gamblin, and Dr. Owen. According to then existing procedure, the claimant “struck” Dr. Owen as a potential examiner. The respondents then withdrew the request for the DIME on July 9, 1999. Thereafter, the respondents selected Dr. Gamblin to perform an IME at the respondents’ expense.
In September 1999, the respondents again requested a DIME on the issues of MMI and permanent medical impairment. According to a newly established procedure, the Division appointed Dr. Cohen has the sole DIME physician. The claimant moved for a “protective order,” arguing that the respondents’ action in selecting Dr. Gamblin to perform an IME was tantamount to “striking” Dr. Gamblin’s name from the IME panel list. Accordingly, the claimant argued that Dr. Moffett had been legally selected as the DIME physician, and the claimant should not be required to undergo a DIME by any other physician. However, a Prehearing Administrative Law Judge (PALJ) denied the motion.
The claimant sought review of the PALJ’s decision before the ALJ. However, before the issue proceeded to hearing, the claimant underwent a DIME by Dr. Cohen. Dr. Cohen issued a “zero percent” impairment rating.” In the order under review, the ALJ held the respondents properly withdrew the June 1999 application for a DIME, and denied the claimant’s request to undergo a DIME performed by Dr. Moffett.
On review, the claimant argues the respondents improperly manipulated the DIME process, and the ALJ erroneously concluded that Dr. Moffett is not the DIME physician. The respondents contend that ALJ’s order is not final and reviewable. We agree with the respondents.
Section 8-43-301(2), C.R.S. 2000, provides a 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.” Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). Thus, it has been held that an order denying a request to exclude evidence based on a discovery violation is “procedural” and not appealable absent an award or denial of specific benefits or penalties. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000), cert. pending. In light of these principles, we have concluded that an order requiring a party to obtain a DIME for purposes of determining the claimant’s medical impairment is not final and reviewable because, under the statutory scheme, the DIME physician’s finding of impairment serves an evidentiary function, and does not constitute a “benefit” or “penalty” within the meaning of § 8-43-301(2). Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996). Similarly, we have held that an order permitting respondents to submit a videotape to the DIME physician to be viewed in connection with the examination is interlocutory and not subject to review. Candelaria v. Summer Properties Services, Inc., W.C. No. 4-430-934 (January 10, 2001).
Here, the ALJ’s order does not award or deny any benefits or penalties. The ALJ’s order merely determined that Dr. Cohen is the physician authorized to conduct the DIME, and denied the claimant’s request that Dr. Moffett be designated as the DIME physician. The propriety of the ALJ’s ruling may be challenged if and when the claimant disputes Dr. Cohen’s determinations of MMI and/or medical impairment.
Citing § 8-43-301(14), C.R.S. 2000, the respondents request an order requiring claimant’s counsel to pay reasonable attorney fees and costs incurred in defending the appeal. The respondents argue the appeal was initiated contrary to “clear-cut and unambiguous” law establishing that the order is not final and appealable.
Section 8-43-301(14) provides the signature of an attorney on a petition to review or brief constitutes a certification by the attorney that the petition to review or brief is “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not interposed for any improper purpose,” such as harassment, delay, or unnecessarily increasing the cost of litigation. Here, the claimant’s attorney has not had an opportunity to reply to the respondents’ request for attorney fees and costs. Further, the request for attorney fees and costs may involve issues of fact concerning counsel’s motivation or intent in filing the petition to review. We lack statutory authority to resolve issues of fact. Section 8-43-301(8), C.R.S. 2000. Consequently, we conclude it is appropriate to remand the matter to the ALJ with instructions to conduct appropriate proceedings, including a hearing if necessary, to resolve the respondents’ request for attorney fees and cost. In remanding the matter, we should not be understood as expressing any opinion concerning whether or not it is proper to award attorney fees and costs in this case. Cadelaria v. Summer Properties Services, Inc., supra.
IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated May 4, 2000, is dismissed without prejudice.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ with instructions to conduct appropriate proceedings to resolve the respondents’ request for attorney fees and cost.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Araphoe, Tower 3, Suite 350, Denver, CO 80202, and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 2000.
Copies of this decision were mailed January 31, 2001 to the following parties:
Patricia L. Wright, 1625 N. Murray Blvd., #218, Colorado Springs, CO 80915
Brian Larsen, Western Promotions, P. O. Box 260168, Lakewood, CO 80226
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Raymond F. Callahan, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
BY: A. Pendroy