ALLA VAYNBERG, Employee/Appellant, v. THE MCKNIGHT FOUND., and MINNESOTA ASSIGNED RISK PLAN/WAUSAU INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 14, 2004

 

No. WC04-219

 

HEADNOTES

 

JURISDICTION - SUBJECT MATTER.  As compensation judges are charged with responsibility to enforce provisions of the Minnesota Workers= Compensation Act, the compensation judge had subject matter jurisdiction to address the employer and insurer=s motion to compel attendance at an independent medical examination.

 

APPEALS - INTERLOCUTORY ORDERS; JURISDICTION - SUBJECT MATTER.  The Workers= Compensation Court of Appeals lacks subject matter jurisdiction to consider an appeal from an order compelling the employee=s attendance at an independent examination, as an order compelling attendance is not a final or appealable order under Minn. Stat. ' 176.421.

 

Appeal dismissed.

 

Determined by: Rykken, J., Wilson, J., and Johnson, C.J.

 

Compensation Judge: Carol A. Eckersen

 

Attorneys: David R. Vail, Soderberg and Vail, Minneapolis, MN, for the Appellant.  Randee S. Held, Mahone, Dougherty & Mahoney, P.A., Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s order compelling her attendance at an independent medical examination.  We dismiss the appeal. 

 

BACKGROUND

 

On or about April 26, 1996, Alla Vaynberg, the employee, sustained an admitted work-related injury to her neck, shoulders and arms, in the nature of cumulative trauma injury.  The employee had worked as an accountant for the employer, The McKnight Foundation, since 1991, and performed data entry work at the time of her injury.  She continued to work for the employer following her injury.  By approximately January, 2001, the employer modified  the employee=s job duties and her work station to accommodate her medical condition.  Although the employee has not lost time from work as a result of her injury, she has incurred medical expenses which were paid by the employer and its insurer, the Minnesota Assigned Risk Plan, as administered by Wausau Insurance Company.

 

The employee=s injury and related claims were the subject of earlier litigation.  By stipulation for settlement in 2002, formalized by an award on stipulation served and filed December 13, 2002, the parties resolved a claim brought by the employee for permanent partial disability benefits.  A hearing was held on February 11, 2003, to address the employee=s medical request for payment of fees for an additional three months of health club membership.  In findings and order served and filed on February 18, 2003, a compensation judge awarded the employee=s claim.  In June 2003, the parties reached settlement on a medical intervenor=s claim for reimbursement; a related  award on stipulation was served and filed on June 18, 2003.

 

In March 2004, the employer and insurer scheduled the employee for an independent medical examination with Dr. Frank Wei, to evaluate the employee=s entitlement to payment for additional medical expenses.  The employee advised the employer and insurer that she would not be attending that examination.  On March 25, 2004, the employer and insurer filed a motion, pursuant to Minn. Stat. ' 176.155, to compel the employee=s attendance at the examination.^[1]  No hearing was held on the motion.  By order compelling discovery, served and filed on June 14, 2004, the compensation judge granted the employer and insurer=s motion, concluding that the requested examination was reasonable pursuant to Minn. Stat. ' 176.155, subd. 1, and ordering the employee to appear for the independent medical examination at the time and place specified by the insurer.  The employee appeals.

 

STANDARD OF REVIEW

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

 The employee appeals from the judge=s order compelling the employee=s attendance at an independent medical examination, arguing that, in this case, the compensation judge did not have jurisdiction to address the employer and insurer=s motion nor to order discovery.  The employee also contends that the employer and insurer are not entitled to discovery, as there is no underlying litigation and no ongoing payment of benefits.

 

Minn. Stat. ' 176.155 does not, by its terms, restrict an employer=s right to an independent medical examination to cases in which there is ongoing litigation on a claim.  Rather, the statute allows for an examination Aat reasonable times . . . upon the employer=s request.@  Id., subd. 1.  Compensation judges are charged with responsibility to enforce provisions of the Minnesota Workers= Compensation Act, and an order to compel attendance at an independent medical examination may be an appropriate means by which to enforce compliance with Minn. Stat. ' 176.155, subd. 1.  As such, we conclude that the compensation judge in the present case had subject matter jurisdiction to address the employer and insurer=s motion.

 

Having determined that the compensation judge had subject matter jurisdiction, the question arises whether this court has jurisdiction to address the employee=s appeal from the compensation judge=s order.  The employer and insurer argue that the compensation judge=s order is an interlocutory order, which is not appealable.  Mayer v. Bauer, 42 W.C.D. 1025 (W.C.C.A. 1990).^[2]  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 not appealable.  In re: William=s Estate, 254 Minn. 272, 95 N.W.2d 91, 100 (1959); see, e.g., Mierau v. Alcon Indus. Inc., 386 N.W.2d 741, 38 W.C.D. 652 (Minn. 1986).  In Mierau, the Minnesota Supreme Court determined that the Workers= Compensation Court of Appeals lacked subject matter jurisdiction over an appeal from an order requiring the employee to attend a discovery deposition, because the order did not affect the merits of the case nor did it prevent a later determination on the merits. 

  

As a general rule, 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, Slip op. (W.C.C.A. May 8, 1997), citing Zizak v. Despatch Indus., Inc., 427 N.W.2d 755, 756 (Minn. Ct. App. 1988), Apreventing a later determination on the merits.@  Mierau, 386 N.W.2d at 742, 38 W.C.D. at 653; compare Andor v. Buhler Mfg. Co, 56 W.C.D. 1 (W.C.C.A 1996) (an order determining a motion to dismiss on jurisdictional grounds is appealable).  In this case, there is nothing in the compensation judge=s order that finally determines the outcome of any future claim or action that may be instituted by the parties, and we see no reason to distinguish this case from this court=s earlier decisions holding that interlocutory orders granting or refusing discovery are not appealable.  We conclude that this court lacks subject matter jurisdiction over the employee=s appeal, and therefore dismiss the employee=s appeal.