IN RE ASCHEBROOK, W.C. No. 3-114-413 (12/10/96)


IN THE MATTER OF THE CLAIM OF DOUG ASCHEBROOK, Claimant, v. GRAND JUNCTION REGIONAL CENTER, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 3-114-413Industrial Claim Appeals Office.
December 10, 1996

ORDER

The respondents have filed a Petition to Review an order issued by Administrative Law Judge Martinez (ALJ) on May 13, 1996. We dismiss the Petition for lack of a final order.

The issue is “whether Dr. Fox, a Level II accredited physician who performed surgery on the claimant, was the appropriate treating physician to assign the claimant’s permanent impairment rating pursuant to § 8-42-107(8)(c).” On March 5, 1996, Dr. Fox reported the claimant to be at maximum medical improvement (MMI) and rated the claimant’s medical impairment as thirty-two percent of the whole person.

The ALJ found that Dr. Fox was the “authorized treating physician who provided the claimant’s primary care.” The ALJ further determined that the claimant was examined by Dr. Woelfel pursuant to a limited referral which did not include authorization to rate the claimant’s medical impairment. Under these circumstances, the found that Dr. Woelfel’s medical impairment rating was invalid, and determined that the rights and liabilities of the parties for medical impairment benefits “shall flow from the rating assigned by Dr. Fox.” The ALJ also awarded disfigurement benefits and directed the respondents to reimburse the claimant for the cost of the impairment rating by Dr. Fox.

On review, the respondents do not contest the award of disfigurement benefits or the requirement that they pay the cost of Dr. Fox’s impairment rating. Rather, the respondents only dispute the ALJ’s determination that the impairment rating of Dr. Woelfel is invalid. We conclude that this portion of the order is not currently subject to review.

Section 8-43-301(2), C.R.S. (1996 Cum. Supp.), states that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty” may file a petition to review. 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). Similarly, orders concerning procedural issues, including discovery matters, do not satisfy the statutory definition of an appealable order. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) Jones v. Chicken-N-Pasta, W.C. No. 4-197-841, February 3, 1995 (order denying motion for protective order is not subject to review); Figal v. City of Pueblo, W.C. No. 3-690-844, September 12, 1994 (concerning order declining to hold a hearing on a motion for protective order; subsequent appeal dismissed by Court of Appeals in 94CA1596, because neither ICAP order nor underlying order was final).

Here, the ALJ’s order does not award or deny the claimant a benefit or penalty. Nor does the ALJ’s order purport to require the respondents to pay permanent partial disability benefits in accordance with the medical impairment rating of Dr. Fox. In fact, the respondents recognize that under the Rules of Procedure, Part IV(N)(4)(b), 7 Code Colo. Reg. 1101-3 at 6.02-7 (1994) [amended effective November 30, 1996], the insurer has the option of admitting liability consistent with the degree of impairment found to exist by the rating physician, or requesting a Division-sponsored IME on the issue of medical impairment. The record does not indicate which, if either of these options the respondents’ pursued. Under these circumstances, the ALJ’s order is not a final order concerning the respondents’ liability for permanent disability benefits. See Cross v. Western Investigation Services, W.C. No. 3-104-927, April 30, 1996 Ellner v. Neodata, W.C. No. 4-180-902, November 22, 1994 (order requiring respondents to admit liability for permanent disability benefits or obtain an IME is interlocutory).

Furthermore, in the event that the respondents elect to obtain a Division-sponsored IME, we have previously held that payment for a Rule IV IME does not constitute the payment of a “penalty.” Leos v. Kent Group, Inc., W.C. No. 4-231-009, November 25, 1996; Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472, September 24, 1996; Hernandez v. Proctor, W.C. No. 4-203-029, June 24, 1996. Rather, we have concluded that a Rule IV IME is a form of discovery. See American Express v. Industrial Commission, supra. (payment of deposition expenses did not impose a “penalty”). We adhere to our previously stated position.

Consequently, the contested portion of the ALJ’s order does not award or deny a benefit or penalty within the meaning of § 8-43-301(2). Therefore, we currently lack jurisdiction to review that portion of the order, and must dismiss the respondents’ Petition to Review without prejudice. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986) (orders may be partially reviewable and partially interlocutory).

IT IS THEREFORE ORDERED that the respondents’ petition for review of the ALJ’s order dated May 13, 1996, is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ Kathy E. Dean
____________________________________ Dona Halsey

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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).

Copies of this decision were mailed December 10, 1996
to the following parties:

Doug Aschebrook, 640 Leah Court, Grand Junction, CO 81504

Doug Aschebrook, 1 Petunia Circle, Clintonville, WI 54929

Grand Junction Regional Center, 2800 D Road, Grand Junction, CO 81501-4721

Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)

Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)

Connie K. Ward, Esq. J. Keith Killian, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)

BY: _______________________