DARLENE CHIVERS, Employee, v. XCEL ENERGY and ST. PAUL TRAVELERS/ G.E. YOUNG CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 2, 2004

 

No. WC04-244

 

HEADNOTES

 

APPEALS - INTERLOCUTORY ORDERS.  Orders granting or refusing discovery are interlocutory and are not appealable.  This court lacks jurisdiction to consider or determine the employer and insurer=s appeal from the compensation judge=s order denying their motion to strike the employee=s Objection to Discontinuance from the calendar for failure to provide medical authorizations, and the appeal must be dismissed.

 

Motion to dismiss granted.

 

Determined by Johnson, C.J., Debra A. Wilson, J., and William R. Pederson, J.

Compensation Judge: James F. Cannon

 

Attorneys:  Timothy S. Crom, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.  David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee has filed a motion to dismiss the appeal of the employer and insurer, asserting this court lacks subject matter jurisdiction to hear and determine an appeal from an interlocutory order.  We agree, and dismiss the appeal.

 

BACKGROUND

 

Darlene Chivers, the employee, sustained an admitted personal injury on June 21, 2002, while employed by Xcel Energy, the employer, insured for workers= compensation purposes by St. Paul Travelers/G.E. Young Company.  On April 15, 2004, the employer and insurer served and filed a Notice of Intention to Discontinue benefits (NOID), alleging the employee was off work due to medical reasons unrelated to her work injury.   Following an administrative conference on May 12, 2004, a compensation judge issued an order permitting the employer and insurer to suspend the employee=s temporary partial disability benefits until the employee returned to work.  The employee then filed an Objection to Discontinuance on May 18, 2004, claiming, in addition, entitlement to temporary total disability benefits from April 26 to May 12, 2004.

 

On May 28, 2004, the employer and insurer sent a written request for seven medical authorizations  to the employee=s counsel.  When the authorizations were not executed and returned, the employer and insurer, on July 23, 2004, served and filed a Motion for Order to Strike Claim from Hearing Calendar.  The employee objected to the motion.  On August 1, 2004, the compensation judge issued an Order Denying Motion to Strike, concluding the employee was not required to provide medical authorizations for conditions unrelated to her work injury.  The employer and insurer appeal.

 

DECISION

 

Appeals to this court may be taken from Aan award or disallowance of compensation, or other order affecting the merits of the case.@  Minn. Stat. ' 176.421, subd. 1.  Generally, or­ders grant­ing or refusing discovery are interlocutory and are not appealable.  In re: William=s Es­tate, 254 Minn. 272, 95 N.W.2d 91, 100 (1959); Mierau v. Alcon Indus. Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986).

 

The employer and insurer argue that, in this case, the employee=s failure to provide the requested authorizations significantly prejudices their ability to defend against the pending claim.  The appellants assert the order denying the motion to strike prevents them from preparing a full defense, has a direct affect on Athe merits of the case@ and is, therefore, appealable.  We disagree.  An or­der Aaffecting the merits of the case@ is one that Afinally deter­mines the rights of the parties or concludes the action,@ Hagen v. Hoffman Aseptic Pack­aging, No. 469-48-1988 (W.C.C.A. May 8, 1997, citing Zizak v. Despatch Indus., Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. Ct. App. 1988)), Apreventing a later determination on the merits.@  Mierau, 386 N.W.2d at 742, 38 W.C.D. at 653.  Such is not the case here.  There is nothing in the order that finally determines the action, and we see no reason to distinguish this case from the numerous decisions holding that interlocutory orders granting or re­fusing discovery are not ap­pealable.  See, e.g.,  Herbst v. Jones Truck Lines, slip op. (W.C.C.A. Oct. 20, 1999); Duran v. Bongards= Creameries, slip op. (W.C.C.A. Oct. 12, 1999);  Otis v. Belcorp, Inc., slip op. (W.C.C.A. Feb. 17, 1999);Winter v. Thompson Enters., slip op. (W.C.C.A. Nov. 12, 1992).

 

The employer and insurer further argue the compensation judge failed to include adequate findings to support the order denying motion to strike and must, therefore, be vacated or reversed.  We are aware of no requirement that an order contain findings similar to a Findings and Order, and decline to reverse on that basis.

 

We make no determination on the merits of the employer and insurer=s appeal.  While the present appeal must be dismissed for lack of subject matter jurisdiction, the employer and insurer properly may raise the issue again at an evidentiary hearing in this case or request review on appeal from the compensation judge=s decision on the merits.