W.C. No. 4-122-784Industrial Claim Appeals Office.
February 7, 1996
ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which declared Dr. Hooshmand to be an authorized physician. We dismiss the petition to review without prejudice.
A brief review of the procedural history of this case is necessary. The claimant sustained an “electrical shock” injury in October 1991. Ultimately, Dr. McCranie became one of the claimant’s authorized treating physicians. Dr. McCranie opined that the claimant reached maximum medical improvement (MMI) on November 11, 1993, with a whole person medical impairment of nine percent. In December 1993, the respondent filed a Final Admission of Liability based on Dr. McCranie’s report. The claimant filed a timely objection to this admission.
Subsequently, the claimant moved to Florida where he obtained an examination and treatment from Dr. Hooshmand. Dr. Hooshmand submitted a report which states that the claimant is not at MMI and needs additional treatment for the effects of the electrocution injury.
In October 1994, the claimant filed an application for hearing listing numerous issues including reopening of the claim, temporary disability benefits, penalties, and change of physician under § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.). At the hearing, the claimant indicated that he desired Dr. Hooshmand to become the authorized treating physician.
Following a hearing in January 1995, and the subsequent taking of medical depositions, the ALJ entered an order on March 1, 1995. The order explicitly states that the only issue decided is the authorization of Dr. Hooshmand, and that “other issues are reserved for later determination.”
Based on the evidence, the ALJ found that the claimant made a “proper showing” to authorize Dr. Hooshmand as the authorized treating physician. However, the ALJ also recognized that Dr. McCranie, an authorized treating physician, placed the claimant at MMI on October 11, 1993. Under these circumstances, the ALJ concluded that § 8-42-107(8), C.R.S. (1995 cum. Supp.) requires the claimant to undergo an independent medical examination (IME) prior to a determination of liability for additional medical and disability benefits. The ALJ also ordered the respondent to pay the cost of the IME, “including claimant’s reasonable transportation expenses.”
On review, the respondent raises two issues. The respondent contends that the ALJ erred in authorizing Dr. Hooshmand as an authorized treating physician. Specifically, the respondent asserts that, under the provisions of § 8-42-107(8)(d), C.R.S. (1995 Cum. Supp.), the claimant is required to obtain an IME for purposes of contesting Dr. McCranie’s determination of MMI. The respondent also contends that the ALJ erred in ordering it pay the cost of the IME and claimant’s transportation expenses. We dismiss the petition to review without prejudice.
Section 8-43-301(2), C.R.S. (1995 Cum. Supp.), provides that a party dissatisfied with an order may file a petition to review if the order “requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” The courts have repeatedly held that orders which do not meet the statutory criteria are interlocutory and not subject to review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158
(Colo.App. 1994); Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989); Director of the Division of Labor v. Smith, 725 P.2d 1161
(Colo.App. 1986).
Insofar as the ALJ’s order “authorizes” Dr. Hooshmand, but does not order the respondent to pay for additional medical or temporary disability benefits, the order does not require the respondent pay any penalty or benefit. To the contrary, “authorization” refers to a physician’s legal authority to treat, but is not itself a “medical benefit.” See One Hour Cleaners v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0178, December 21, 1995) (authorization refers to treating physician rather than particular treatment or procedure recommended).
Here, the ALJ expressly refused to order the respondent to pay for any medical treatment provided by Dr. Hooshmand, either past or future. Instead, the ALJ determined that the respondent’s liability to pay additional medical benefits remains to be determined. Consequently, the ALJ’s authorization of Dr. Hooshmand is not currently reviewable under the provisions of § 8-43-301(2).
Moreover, we have previously determined that an order requiring a respondent to pay for an IME is not subject to review because it does not award or deny any “benefit” or “penalty” within the meaning of the Act. Our conclusion is predicated on American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985), in which the court held that imposition of liability for deposition costs does not constitute a “penalty” under the Act. Rather, an IME serves an evidentiary function and is not itself a “benefit.” See Para v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, May 17, 1994.
For the same reason, the order of transportation expenses is not a “benefit.” Rather, the order to pay transportation expenses is akin to the imposition of deposition costs described in American Express v. Industrial Commission, supra. Consequently review of the ALJ’s decision to assess these costs against the respondent must cannot be made until there has been an order which awards or denies a benefit or penalty.
IT IS THEREFORE ORDERED that the respondent’s petition to review the ALJ’s order dated March 1, 1995, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
An action to modify or vacate the Order may be commenced in theColorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, byfiling a petition to review with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office 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. (1995 Cum. Supp.).
Copies of this decision were mailed February 7, 1996 to the following parties:
Stephen D. Fernandez, 1108 Parkside Pl., Indian Harbor Beach, FL 32937
City County of Denver, Attn; Nancy Hogue, Adjuster, 1445 Cleveland Pl., #200,
Denver, CO 80202
Daniel E. Muse, Esq. and Olivia L. Hudson Smith, Esq., 1445 Cleveland Pl., Rm. 200,
Denver, CO 80202
By: ______________________