Opinion
W.C. No. 4-116-119
May 8, 2001
ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied his request that the cost of a Division-sponsored independent medical examination (DIME) be assessed against the respondents or the State of Colorado. We dismiss the petition to review without prejudice.
The claimant requested a DIME to challenge the treating physician's determination that he reached maximum medical improvement (MMI). The claimant alleges he is indigent, and raises constitutional and statutory arguments that, despite the provisions of § 8-42-107.2(5), C.R.S. 2000, either the respondents or the State of Colorado should be ordered to pay the costs of the DIME.
In an order dated August 22, 2000, the ALJ denied the claimant's request. The ALJ rejected the claimant's statutory arguments, and concluded that he lacked jurisdiction to address the claimant's constitutional arguments.
On appeal, the claimant raises the same issues which he argued to the ALJ. We dismiss the petition to review for lack of a final order.
Initially, we note a potential conflict of interest. The undersigned Appeals Examiners are named defendants in a civil lawsuit which the claimant filed in the District Court. The subject matter of the lawsuit arises out of the same circumstances as this appeal. Because all Appeals Examiners of Industrial Claim Appeals Office are defendants in the lawsuit, and because the Industrial Claim Appeals Office has jurisdiction to consider appeals from orders of an ALJ, the "rule of necessity" requires that we consider the appeal despite the potential conflict. See deKoevend v. Board of Education, 688 P.2d 219 (Colo. 1984); Leonard v. Board of Directors, Prowers County Hospital District, 673 P.2d 1019 (Colo.App. 1983).
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 which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). As a general matter, procedural rulings concerning evidentiary issues are not final and appealable. See Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000) (order denying request to impose discovery sanctions was not final and appealable).
In light of these principles, we have consistently held that orders assigning liability for the costs of a DIME are not subject to immediate review because they do not award or deny any "benefit" or "penalty" within the meaning of the Workers' Compensation Act. This is true because the DIME serves an evidentiary function relevant to resolving the ultimate issues of liability for temporary disability and permanent partial disability benefits. See Beede v. Allen Mitchek Feed Grain, W.C. No. 4-317-785 (April 20, 2000); Fernandez v. City and County of Denver, W.C. No. 4-122-784 (February 7, 1996); Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-8 75 (May 17, 1994).
Thus, whatever the substantive merits of the claimant's arguments, we lack jurisdiction to review them at this stage of the proceedings. Although we recognize the practical difficulties confronting the claimant, our authority to conduct appellate review is limited by statute, and we may not assume powers not delegated to us by the General Assembly. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995); Jones v. Chicken-N-Pasta, W.C. No. 4197-841 (February 3, 1995) (declining to apply "death knell" doctrine to review denial of a protective order because we, unlike the Supreme Court, have no authority to conduct pre-judgment review of evidentiary rulings); cf. Harris v. District Court, 843 P.2d 1316 (Colo. 1993) (Supreme Court exercised discretionary authority under C.A.R. 21 to review trial court's denial of a second preliminary hearing).
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated August 22, 2000, 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 May 8, 2001 to the following parties:
Marvin Smith, 2885 W. 128th Ave., #1361, Broomfield, CO 80234-7014
Bruce Clabaugh, Western Waste Management of Colorado, 2400 W. Union Ave., Englewood, CO 80110
Continental Insurance Co., C.N.A. Insurance Co., 10333 E. Dry Creek Rd., Englewood, CO 80012
Wendy Stalkfleet, Continental Insurance/C.N.A., P. O. Box 17369 T. A., Denver, CO 80217
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant)
John Lebsack, Esq., and Matthew W. Tills, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy