W.C. No. 4-505-716.Industrial Claim Appeals Office.
August 31, 2005.
ORDER
The claimant seeks review of an order dated April 6, 2005 of Administrative Law Judge Martinez (ALJ) that ordered the claimant to attend an independent medical examination (IME), to pay a transfer fee to the airline to permit the claimant to use a ticket already purchased by the respondents, and to pay the independent medical examiner a “reasonable cancellation fee” because of her cancellation of a previous IME. We dismiss the petition to review without prejudice.
The ALJ’s pertinent findings of fact are as follows. On May 14, 2001, the claimant injured her right knee in a compensable accident and reached maximum medical improvement (MMI) on June 20, 2002. The respondents filed a final admission of liability (FAL) admitting for medical benefits after MMI, which they provided. On September 28, 2004 the respondents notified the claimant that an IME had been scheduled to be conducted by Bruce Lockwood, M.D., whose office was in Fort Collins, Colorado. The letter stated that the insurer would pay for reasonable airfare. The claimant, who resided in Montana, could not arrange for affordable airfare and did not attend the IME.
On November 8, 2004 the insurer sent the claimant another letter informing her that the IME had been rescheduled for November 23, 2004, and including an itinerary setting forth flight information, and expenses for local travel, meals, and lodging. The claimant also failed to attend the second IME. As a result, the insurer incurred expenses that included Dr. Lockwood’s cancellation fee and the potential payment of $100 to the airline to transfer the ticket.
Based upon his findings, the ALJ concluded that none of the claimant’s proffered excuses for failing to attend the IME constituted a justification for the unilateral cancellation of the appointment, and that the claimant’s conduct was unreasonable. Acordingly, the ALJ ordered the claimant to attend the IME, to pay the $100 fee required to transfer the airline ticket so that it could be used currently, and to pay “a reasonable cancellation fee” to the Ime doctor.
On appeal the claimant argues that the ALJ erred in ordering her to attend the IME, and to pay the airline transfer fee and the cancellation fee. We conclude that the ALJ’s order is not presently final and reviewable and, therefore, we dismiss the petition to review without prejudice.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied 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.” An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
The ALJ’s order requiring the claimant to attend the IME does not award or deny benefits, nor does it impose any penalty on the claimant. Nor does the order requiring the claimant to pay to the independent medical examiner a “reasonable cancellation fee” impose any specific penalty. It is questionable whether that portion of the order would be interlocutory even if it specified the amount of the cancellation fee. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985). However, since the amount of the fee was not set forth in the order, it is clearly not presently final and reviewable. Finally, the order to pay to the airline the transfer fee of $100 does not require payment of a penalty. In our view, this portion of the order merely represents the allocation of the transportation costs of the IME, and we have previously held that an order requiring a party to pay the costs of an IME is not final and reviewable. E.g., Martinez v. CIGNA Insurance, W.C. No. 4-153-571
(April 21, 1994). This case is analogous to American Express v. Industrial Commission, supra. in which the court held that an order allocating the costs of a deposition was interlocutory. Although the present order may be reviewable in connection with a subsequent final order, it is not presently final and appealable.
IT IS THEREFORE ORDERED that the petition to review the ALJ’s order dated April 6, 2005, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
Lynn Lowder, Twin Bridges, MT, Albertson’s, Inc., Grand Junction, CO, Mary Wiggins, Specialty Risk Services, Salt Lake City, UT, William M. Sterck, Esq., Denver, CO, (For Respondents).
Christopher Seidman, Esq., Grand Junction, CO.