W.C. No. 4-203-029Industrial Claim Appeals Office.
June 24, 1996
ORDER
The respondents have filed a Petition for Review of an order of Administrative Law Judge Henk (ALJ), dated August 28, 1995. We dismiss the Petition without prejudice.
The claimant suffered a scheduled injury on February 21, 1994, which was treated by Dr. Frost. On January 5, 1995 Dr. Frost determined the claimant to be at maximum medical improvement. Because Dr. Frost is not a Level II accredited physician within the meaning of § 8-42-101(3.6), C.R.S. (1995 Cum. Supp.), the claimant moved for an order requiring the respondents to pay for an independent medical examination (IME) of his medical impairment in accordance with the Rules of Procedure Part IV(N)(4)(d), 7 Code Colo. Reg. 1101-3 at 7 (1995).
Rejecting the respondents’ arguments that Rule IV(N)(4)(d) does not apply to scheduled injuries, the ALJ granted the claimant’s motion. The ALJ also awarded disfigurement benefits.
Under § 8-43-301(2), C.R.S. (1995 Cum. Supp.), 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 Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
Relying upon American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) in which the court held that the imposition of liability for deposition costs does not constitute a “penalty” under the Act, we have previously held that an order which grants or denies a request for an IME on the issue of permanent medical impairment is not a final order See Martinez v. CIGNA Insurance,
W.C. No. 4-153-571, April 21, 1994; Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, May 17, 1994 (petition for writ subsequently dismissed by the Court of Appeals on July 6, 1994, for lack of final, appealable orders by the ICAP and the ALJ). Instead we have concluded that an IME for purposes of determining medical impairment, serves an evidentiary function, and is not itself either a “penalty” or a “benefit.” We adhere to our previously stated position.
Here, the respondents do not dispute the award of disfigurement benefits, and only seek review of the ALJ’s order which requires them to pay for an IME. Consequently, the contested portion of the ALJ’s order does not require the respondents to pay a “benefit” or “penalty” within the meaning of § 8-43-301(2), and is interlocutory. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986). Therefore, we currently lack jurisdiction to review the ALJ’s order insofar as it requires the respondents to comply with Rule IV(N)(4)(d). Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the respondents’ Petition for Review of the ALJ’s order dated August 28, 1995, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commencedin the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for writ of certiorari with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed June 24, 1996 to the following parties:
Diego Hernandez, P. O. Box 321, Manzanola, CO 81058
Vernon E. Proctor d/b/a Rocky Ford Produce, P. O. Box 383, Rocky Ford, CO 81067-0383
Brandee L. DeFalco, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Michael E. Lajoie, Esq., 123 W. 12th St., Pueblo, CO 81003 (For Claimant)
BY: _______________________