W.C. No. 4-468-818Industrial Claim Appeals Office.
September 11, 2001
ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ Felter) which suspended the claimant’s right to proceed with her claim for workers’ compensation benefits. We dismiss the petition to review without prejudice.
The pertinent portion of the record reflects that on November 17, 2000, the claimant filed an application for hearing listing the issues as compensability, medical benefits, temporary disability benefits, and average weekly wage. A hearing was scheduled for March 14, 2001.
On January 22, 2001, the respondent filed a Motion for Order Directing Claimant to Undergo MRI. The motion alleged the respondent’s independent medical examination (IME) physician recommended the claimant undergo an MRI for the purpose of clarifying the issue of causation. The motion alleged an MRI scheduled for December 7, 2000 was rescheduled at the claimant’s request, and the claimant failed to attend the rescheduled MRI set for December 22, 2000. Thus, the motion requested entry of an order directing the claimant to undergo an MRI in accordance with §8-43-404(3), C.R.S. 2000, and granting a continuance of the hearing scheduled for March 14. On February 12, 2001, ALJ Schulman continued the March 14 hearing, and she directed the case should be reset “following the claimant undergoing the MRI recommended by” the respondent’s IME physician.
On March 21, 2001, the respondent filed a Motion to Dismiss Claim alleging claimant’s counsel was notified of an MRI scheduled for March 2, 2001, but the claimant failed to appear. The respondent requested the claim for benefits be “dismissed and denied.” The claimant did not file a response to this motion, and ALJ Felter entered an order on April 3, 2001. However, the order merely suspended the claim for compensation and did not deny and dismiss the claim.
On April 11, 2001, the claimant filed a motion to reconsider and/or petition to review the April 3 order. The petition contains factual allegations that the claimant was unable to undergo the MRIs because she was residing in California “at all relevant” times. The petition further alleges the April 3 order violates her rights to travel, due process, and equal protection of the laws. On April 17, 2001, the respondent filed a response to the claimant’s petition which contains several factual allegations, and argues the claimant’s right to collect benefits should be barred from March 2, 2001 through May 9, 2001, the date of a newly scheduled MRI. On April 19, 2001, ALJ Felter entered an order directing that the claimant’s benefits be suspended “during the period March 2, 2001, and the date on which she undergoes an MRI.” However, no petition to review was filed concerning this order.
On July 24, 2001, ALJ Felter transmitted the matter for our review. The claimant failed to file a brief in support of the petition to review. The respondent elected not to file a brief in light of the claimant’s failure to file a brief.
Section 8-43-301(2), C.R.S. 2000, provides that a party dissatisfied with an order 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.” Orders which do not require the payment of any penalty or benefits, and do not deny the claimant any benefit or penalty, are interlocutory and not subject to immediate appellate 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. 1998).
As a general matter, an ALJ’s rulings concerning evidentiary issues are not immediately reviewable because they do not award or deny benefits or penalties. Hence, in Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000), the court held an ALJ’s order denying a request to exclude medical reports from the evidence as a form of discovery sanction was not immediately reviewable. The court stated the order denying exclusion of the reports did not constitute “the denial of a penalty” because it did not involve the payment of a sum of money, and because the order concerned “a procedural ruling.” Similarly, we held an ALJ’s order requiring the claimant to undergo an IME pursuant to §8-43-404(1), C.R.S. 2000, was interlocutory because it concerned an evidentiary matter and did not involve an award or denial of benefits or penalties. Paton v. Albertson’s, Inc., W.C. No. 3-788-647 (June 30, 1993).
Applying these principles here, we conclude ALJ Felter’s April 3 order is interlocutory and not subject to immediate review. The respondent’s January 22 Motion for Order Directing Claimant to Undergo MRI, as well as ALJ Felter’s April 19 order, expressly refer to §8-43-404(3). Thus, we infer the April 3 order suspending the claimant’s right to collect benefits was entered pursuant to that statute.
The first sentence of § 8-43-404(3) permits an ALJ to suspend the claimant’s right to collect compensation if the claimant “refuses to submit to medical examination” or “in any way obstructs the same.” The second sentence of the statute provides that if the claimant refuses to submit “to such examination after direction by the director or any agent, referee, or administrative law judge,” then “all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred.” In Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000), the court ruled this statute creates a “two-tiered system of sanctions for the refusal to submit to medical examinations.” The first sentence permits temporary suspension of the right to collect benefits during the claimant’s period of refusal to attend a medical examination, and the second sentence creates a permanent bar to collection of benefits if the claimant refuses to submit to examination after entry of an order directing the claimant to attend the examination. Id. at 388-389.
An order temporarily suspending the claimant’s right to collect benefits under § 8-43-404(3) does not constitute a “denial” of benefits for purposes of § 8-43-301(2). Rather, such an order is procedural in nature and imposes a sanction for the claimant’s refusal to provide information or evidence relevant to adjudication of the claim for benefits. Thus, such an order is analogous to a temporary, non-monetary discovery sanction, and is not immediately reviewable. Reed v. Industrial Claim Appeals Office, supra. In contrast, an order which bars the collection of benefits based on the claimant’s refusal to submit to examination after being directed to do so would be reviewable because such an order would constitute an absolute denial of the claimant’s right to receive benefits.
In this case, ALJ Felter has not absolutely barred the claimant’s right to receive benefits based on the claimant’s noncooperation with the MRIs. Instead, ALJ Felter has merely “suspended” the right to collect benefits pending the claimant’s cooperation. Consequently, ALJ Felter’s April 3 order is interlocutory because it does not deny any benefits and is procedural in nature.
In reaching this result we should not be understood as expressing any opinion concerning whether or not it would be appropriate to bar the claimant’s right to collect benefits for any period of time. ALJ Felter has not finally determined this issue, and we express no opinion concerning the question.
IT IS THEREFORE ORDERED that the claimant’s petition to review ALJ Felter’s order dated April 3, 2001, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate the Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office, which may be served by mail at 1515 Araphoe, Tower 3, Suite 350, Denver, CO 80202, 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. 2000.
Copies of this decision were mailed September 11, 2001 to the following parties:
Sofia Ruiz, 918 Charles St., Lexington, KY 40508
Life Care Center of Greeley, Steve Humberd, Life Care Centers, Inc., P. O. Box 3480, Cleveland, TN 37320-3480
Tammy Washington, Constitution State Service Co., _ The Travelers Companies, P. O. Box 173762, Englewood, CO 80217
Richard K. Blundell, Esq., and John W. Swanson, Esq., 1024 8th St., Greeley, CO 80631 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondent)
BY: A. Pendroy