W.C. No. 4-553-537.Industrial Claim Appeals Office.
August 31, 2004.
ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which granted the claimant’s request for a substitute Division-sponsored independent medical examination (DIME). We dismiss the petition to review without prejudice.
An authorized treating physician placed the claimant at maximum medical improvement (MMI) with a 28 percent whole person impairment. The respondents timely requested a DIME on the issues of MMI and impairment. On August 15, 2003, the DIME physician opined the claimant needed an EMG before being placed at MMI. The DIME physician also assigned a 15 percent impairment rating, but noted the claimant’s lumbar range of motion measurements were invalid.
On November 24, 2003, the insurance adjuster wrote to the DIME physician notifying him that the EMG was complete and requesting that a follow-up examination be completed to “confirm” the DIME physician’s opinions on MMI and impairment. The claimant then filed a motion to hold the DIME in abeyance and requesting that the examination be conducted by a “substitute” DIME physician. The claimant argued, inter alia, that the November 24 letter constituted an improper “commentary” on the evidence and should not have been submitted to the DIME physician. See Rule of Procedure XIV (L)(3)(j), 7 Code Colo. Reg. 1101-3 at 57.
A pre-hearing ALJ (PALJ) denied the motion and ordered the claimant to attend the follow-up DIME on December 17, 2003. The claimant did attend and the respondents then filed a Final Admission of Liability (FAL) based on the DIME physician’s revised rating of 22 percent of the whole person. The claimant contested the FAL and requested that the ALJ determine whether a follow-up DIME should be conducted with a “substitute” DIME physician.
In an order dated February 17, 2004, the ALJ concluded there had been a “violation” of Rule XIV (L)(3)(j) because the November 24 letter constituted a prohibited “commentary” on the medical evidence. Consequently, the ALJ concluded the claimant is “entitled” to a “follow-up DIME with a substitute DIME physician,” and the ALJ ordered the respondents to pay the cost of the follow-up DIME. The respondents appealed the ALJ’s order arguing the ALJ erred in ordering the substitute DIME.
Section 8-43-301(2), C.R.S. 2003, provides that any 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.” Orders which do not meet one of these criteria are interlocutory and not subject to immediate appellate review. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003).
Here, the ALJ’s order does not award or deny any benefits. Indeed, the ALJ’s order determined that the DIME process is not yet complete. Therefore, the claimant’s entitlement to temporary and permanent disability benefits has yet to be determined, and must await completion of the DIME process. Ortiz v. Industrial Claim Appeals Office, supra.
Neither does the ALJ’s order assess any “penalty” against the respondents. A “penalty,” as the term is used in § 8-43-301(2), refers to a monetary sanction imposed against a party for failure to adhere to rules or obey orders. Mere procedural rulings concerning the conduct of discovery or the admission and exclusion of evidence do not involve “penalties.” 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).
Here, the ALJ’s order does not impose a “monetary sanction” on the respondents for submitting the November 24 letter to the DIME physician. The order merely determines that, for purposes of the DIME process and the presumptive weight accorded the DIME physician’s opinions on MMI and impairment, a substitute DIME must be conducted. It is true the order allocates the cost of the substitute DIME to the respondents, but this merely represents the expense of obtaining the additional examination, not a “sanction.” Section 8-42-107.2(5)(a), C.R.S. 2003; Rule of Procedure XIV (L)(4)(a), 7 Code Colo. Reg. 1101-3 at 58; American Express v. Industrial Commission, supra.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order dated February 17, 2004, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________ David Cain
___________________________ Robert M. Socolofsky
Jeronimo Sanchez, Lamar, CO, Neoplan USA Corporation, Lamar, CO, Michael Jordahl, Wausau Insurance Company, Kansas City, MO, Richard Lamphere, Esq., Colorado Springs, CO, for Claimant.
David G. Kroll, Esq., Denver, CO, For Respondents.