Opinion
W.C. No. 4-382-047
December 13, 2000
ORDER
The claimant seeks review of an order of Prehearing Administrative Law Judge Thomas DeMarino (PALJ) dated October 2, 2000. We dismiss the appeal without prejudice.
Following a prehearing conference, the PALJ granted the Respondents' "Motion to Compel" the claimant's response to interrogatories. The PALJ also ordered the claimant to attend an independent medical examination (IME), and held that penalties may be imposed for the claimant's failure to attend. The claimant timely appealed the PALJ's order.
Section 8-43-301(2), C.R.S. 2000, provides that any party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty" may file a petition to review. Orders concerning procedural issues, including discovery matters, do not satisfy the statutory definition of an appealable order. American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) (imposition of liability for deposition costs does not constitute a "penalty" under the Act); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, May 17, 1994 (order denying claimant's motion that the insurer pay the costs of an IME was not appealable; petition for writ subsequently dismissed by the Court of Appeals on July 6, 1994, for lack of a final, appealable order by the ICAP and the ALJ); cf. Sheid v. Hewlett Packard, 826 P.2d 39 (Colo.App. 1991) (involving review of an order which dismissed a claim for benefits as a sanction for failing to comply with a discovery order).
Furthermore, § 8-43-207.5(3), C.R.S. 2000, provides that "an order entered by a prehearing administrative law judge shall be an order of the director and binding on the parties," but further provides "such an order shall be interlocutory." In Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998), the court held that a PALJ's order approving a settlement agreement is a final order subject to review. However, the court distinguished an order approving a settlement from orders "relating to a prehearing conference." The court stated that orders relating to prehearing conferences are "interlocutory ( i.e. not immediately appealable) because a prehearing conference, by definition, is followed by a full hearing before the director or an ALJ." Id. at 1254. The court also indicated that "the propriety of the PALJ's prehearing order may be addressed at the subsequent hearing." Id. at 1254.
Here, the PALJ's order does not award or deny any benefits or penalties within the meaning of § 8-43-301(2). To the contrary, the PALJ's order is a discovery order which is interlocutory in nature. As such, the propriety of the PALJ's order may be reviewed by an ALJ at a subsequent hearing. Therefore, we conclude that we lack jurisdiction to review the order at this time, and must dismiss the claimant's petition to review.
IT IS THEREFORE ORDERED that the claimant's petition to review the PALJ's order dated October 2, 2000, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
An action to modify or vacate this Order may be is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 13, 2000 to the following parties:
Paul Dannaman, P.O. Box 3124, Albuquerque, NM 87190-3124
Susan Jackson, Sturgeon Electric Company, 12150 E. 112th, Henderson, CO 80640
Kevin Krayna, Zurich Insurance Company, P.O. Box 370308, Denver, CO 80237
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Marsha A. Kitch, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy