W.C. No. 4-584-461.Industrial Claim Appeals Office.
September 20, 2005.
ORDER
The respondent seeks review of an order of Administrative Law Judge Klein (ALJ) which struck the respondent’s Notice and Proposal for Selection of a Division-sponsored independent medical examination (DIME). We dismiss the appeal for lack of a final order.
The claimant suffered a compensable injury on March 19, 2003. In an order dated May 18, 2004, the ALJ required the respondent to pay medical benefits and awarded temporary total disability benefits from March 20, 2003 to December 8, 2003. We affirmed the award on appeal in an order dated August 27, 2004.
On February 25, 2005, the respondent filed Notice and Proposal to select a DIME pursuant to § 8-42-107(8)(b)(II), C.R.S. 2005. The claimant moved to strike the DIME request on grounds the respondent failed to meet the statutory prerequisites for obtaining a DIME under §8-42-107(8)(b)(II). The ALJ agreed and entered an order dated March 15, 2005, which vacated the Notice and Proposal for a DIME.
Under § 8-43-301(2), C.R.S. 2005, 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. 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. Nankin Co. v. Embanks, 775 P.2d 88 (Colo.App. 1989). Generally, orders involving discovery and the presentation of evidence are interlocutory because they do not involve an award or denial of benefits or penalties. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000); American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985). In view of these principles, we have issued numerous decisions holding that orders related to DIME requests are interlocutory. Sander v. Summit Group, Inc., W.C. No. 4-369-777
(September 27, 2000); Eg. 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).
Nevertheless, the respondent points out that in Meza v. Conagra Beef Co., W.C. No. 4-444-220 (December 11, 2000), we concluded not every order involving a request for a DIME is interlocutory and not subject to review. Rather, we held that it is necessary to look at the specific provisions of the order to determine whether it effectively requires the payment of a benefit. Accordingly, in Meza we concluded that an ALJ’s order which vacated a claimant’s request for a DIME on grounds it was prematurely filed and also held the claimant was “estopped” from filing another request for a DIME was immediately reviewable because it effectively precluded the claimant from obtaining additional permanent partial disability benefits. However, Meza is distinguishable from the circumstances presented here.
The ALJ’s March 15 order vacates the respondent’s February 25, 2003 application for a DIME. However, the order does not permanently bar the respondent from reapplying for a DIME. More importantly, the March 15 order does not, as the respondent contends, require the respondent to pay any particular medical benefit or temporary disability benefit not already required by the ALJ’s May 18, 2004 order. Accordingly, the March 15 order is interlocutory and not currently reviewable.
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated, March 15, 2005, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
_____________________________ Tom Schrant
Gayle V. Bath, Fort Morgan, CO, Adams County, Brighton, CO, Charles DuScha, Adams County Risk Mgmt., Brighton, CO, Lissa Pierce, Risk Mgmt. Department, Adams County Colorado, Golden, CO, Stacy J. Tarler, Esq. and Jonathan O. Wilson, Esq., Denver, CO, (For Claimant).
Pamela Musgrave, Esq., Denver, CO, (For Respondent).