Opinion
W.C. No. 4-317-785
April 20, 2000
ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied his request for an order requiring the respondents to pay for medical tests recommended by a Division-sponsored independent medical examination (IME) physician. We conclude that the ALJ's order did not deny the claimant any benefits within the meaning of the Workers' Compensation Act and, therefore, we dismiss the petition to review without prejudice
The claimant sustained a compensable shoulder injury in November 1996, and underwent surgical repair in March 1997 Following the surgery the claimant developed pulmonary emboli. In a report dated February 17, 1998, Dr. Lynch determined the claimant had reached maximum medical improvement (MMI), and assessed a 15 percent whole person impairment rating based on the shoulder injury and the pulmonary emboli. The claimant then requested a Division-sponsored IME on the issues of MMI and impairment
The Division IME was conducted by Dr. Rose. In a report dated February 10, 1999, Dr. Rose stated the following:
We have been asked to assess on [sic] Mr. Beede's pulmonary impairment and to evaluate his maximum medical improvement His symptoms of dyspnea on exertion suggest that there may be pulmonary impairment from his second pulmonary embolism; however, the evaluation thus far has not included an exercise stress test. To determine the level of impairment, an exercise stress test is essential to identify abnormalities in gas exchange. An echocardiogram would also be helpful to determine if there is evidence for pulmonary hypertension from recurrent pulmonary emboli
The report of Dr. Rose contained no express finding concerning whether or not the claimant is at MMI, nor any determination of the claimant's impairment rating
Following issuance of Dr. Rose's report, the claimant filed an application for hearing listing the issue as medical benefits, and specifically, "Tests required by Division IME Doctor." At the hearing, the claimant called Dr. Ryan, who opined that Dr. Rose's recommendation for an exercise stress test was "in the realm of understanding the extent of the damages." However, Dr. Ryan also opined that the recommendation for an echocardiogram is diagnostic in nature, and designed to determine whether the claimant suffers from the serious condition of pulmonary hypertension.
(Tr. pp 26, 31)
The ALJ denied the claimant's request for an order requiring the respondents to pay for the tests recommended by Dr. Rose Relying on § 8-43-502(2), C.R.S. 1999, and Rule of Procedure XIV (L)(4)(a), 7 Code Colo. Reg. 1101-3 at 58, the ALJ ruled that the party requesting the Division IME is responsible for the cost of diagnostic testing suggested by the IME physician
On review, the claimant contends that, because the procedures recommended by the Division IME physician are "diagnostic" in nature, the respondents are obliged to pay for them pursuant to § 8-42-101(1)(a), C.R.S. 1999. In support of this proposition, the claimant cites Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). Because we conclude that costs secondary to performing a Division-sponsored IME on the issues of MMI and medical impairment do not constitute "benefits" within the meaning of § 8-43-301(2), C.R.S. 1999, we dismiss the petition to review without prejudice § 8-43-301(2) provides that "any party dissatisfied with an order which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty may file a petition to review." Orders which do not award or deny benefits or penalties are interlocutory, and not subject to review. Natkin Co. v Eubanks, 775 P.2d 88 (Colo.App. 1989). Generally, procedural orders, including those pertaining to discovery costs and the admission or exclusion of evidence, are not considered reviewable because they do not, in and of themselves, award or deny benefits or impose penalties. See Reed v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0084, January 20, 2000); American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985) In view of these principles, we have previously held that orders determining which party must pay for a Division-sponsored IME on the issues of MMI and permanent impairment are not final and reviewable because the Division IME serves a preliminary evidentiary function. See Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472 (September 24, 1996); Hoffschneider v. Francis Constructors, Inc., W.C. No. 3-108-989 (June 6, 1994); Parra v. Sonnenalp Properties, Inc., W.C. No 3-108-875 (May 17, 1994)
We do not dispute the claimant's assertion that diagnostic testing which is reasonable and necessary for treatment of a work-related injury is compensable. See Vickery v. One Hour Cleaners, W.C. No. 4-156-393 (January 13, 1995); aff'd. on other issues, One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). However, it does not follow that medical testing suggested by a Division-sponsored IME physician, prior to issuing any findings concerning MMI and permanent medical impairment, is designed for the purposes of diagnosis and treatment of the work-related injury. Rather, such tests are incidental to the Division IME physician's evidentiary function in determining the isues of MMI and permanent medical impairment § 8-42-107(8)(b)(I), C.R.S. 1999, provides that an authorized treating physician shall make a determination as to when the injured employee reaches MMI. That determination is binding on the parties and the ALJ unless and until a Division-sponsored IME physician makes a contrary determination See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo App. 1995). If a Division IME is performed, that physician's opinion concerning MMI becomes binding unless overcome by clear and convincing evidence. § 8-42-107(8)(b)(III), C.R.S 1999. Story v. Industrial Claim Appeals Office, supra. An ALJ lacks jurisdiction to hear a dispute concerning MMI unless these procedures have been completed. See Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996)
Similarly, § 8-42-107(8)(c), C.R.S. 1999, provides the authorized treating physician shall determine the claimant's medical impairment rating once the claimant reaches MMI. Any party challenging the authorized treating physician's impairment rating must request a Division-sponsored IME, and the ALJ is prohibited from conducting a hearing on impairment until the "finding" of the Division IME physician has been filed. The impairment rating of the Division IME physician is then binding unless overcome by clear and convincing evidence. Thus, the party challenging the Division IME physician's's rating bears the burden of proof Lambert and Sons, Inc. v. Industrial Claim Appeals Office, 984 P.2d 656 (Colo.App. 1998)
It is clear from these provisions that the function of the Division IME physician is to make factual determinations concerning MMI and the medical impairment rating, and the IME's findings are to be accorded substantial evidentiary weight in subsequent litigation. Indeed, the very purpose for enacting these provisions was to reduce litigation concerning MMI and permanent disability. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Conversely, the Division IME physician is not a treating physician. Indeed, § 8-43-502(2) expressly provides that "in no instance shall" the IME physician become the authorized treating physician
It follows that a Division IME physician's request for authorization to perform medical testing is not intended as a diagnostic tool for purposes of treatment, but as a request for authorization to perform procedures which will assist the IME physician in making the necessary factual and evidentiary determinations underlying the findings of MMI and medical impairment. Indeed, as the ALJ recognized, Rule of Procedure XIV (L)(4)(a) expressly contemplates that Division-sponsored IME physicians may perform "clinical or diagnostic testing" as an adjunct to the IME process
It may be that the Division IME physician will ultimately opine the claimant is not at MMI until he undergoes additional diagnostic procedures. If the IME renders such an opinion, it will be binding unless overcome by clear and convincing evidence However, in this case, Dr. Rose has not yet rendered any such opinion. Consequently, the opinions of the treating physician remain binding on the issues of MMI and permanent medical impairment
Under these circumstances, the ALJ's order denying the claimant's request to require the respondents to pay for the medical testing recommended by Dr. Rose is interlocutory. The denial of the request does not, in our view, constitute the denial of a "benefit" under the Act. The ALJ's order merely assigns responsibility for costs associated with obtaining the IME physician's final opinions concerning MMI and medical impairment As such, the order is procedural in nature, and its does not preclude the claimant from later obtaining reasonable and necessary diagnostic tests in accordance with the procedures established by § 8-42-107(8)(b) and (c)
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated September 14, 1999, is dismissed without prejudice
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 1999
Copies of this decision were mailed April 20, 2000 to the following parties:
Rex E. Beede, 19544 Irish Dr., P. O. Box 1266, Sterling, CO 80751
Allen Mitchek Feed Grain, 247 Sierra Vista Ave., Sterling, CO 80751-8460
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance —
Interagency Mail (For Respondents)
Christopher W. Crabtree, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215
(For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy