FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Wells (ALJ) dated November 9, 1994. We affirm the order insofar as the ALJ denied the respondents' petition to suspend benefits, and dismiss the petition to review without prejudice, with respect to the protective order issued by the ALJ.

The respondents petitioned to suspend the claimant's benefits under §§ 8-43-404(3), and 8-42-105(2)(c), C.R.S. (1995 Cum. Supp.). Insofar as pertinent, § 8-43-404(3) provides that compensation shall be suspended:

"So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same . . . ."

Section 8-42-105(2)(c) allows the respondents to suspend temporary disability benefits where the claimant fails to appear at a "rescheduled appointment" with the attending physician, after the respondents have notified the claimant "by certified mail that temporary disability benefits may be suspended" if the employee fails to appear at a rescheduled appointment.

The ALJ found that the claimant failed to submit to a psychological assessment by Dr. Evans on "Monday, August 14, 1994," and a rescheduled appointment on August 25, 1994. Further, the ALJ found that the claimant was notified of the August 14 appointment by correspondence from Linda Morris (Morris) of Bonnie Ruth and Associates. However, the ALJ determined that Morris was not an employer representative or a representative of the insurer. Therefore, the ALJ determined that the respondents failed to sustain their burden to prove that the claimant failed to submit to a medical examination requested by the "employer or insurer" as required by § 8-43-404(3).

With regard to the August 25 appointment, the ALJ found that the respondent-insurer, sent a notice of the rescheduled appointment to the claimant by certified letter dated August 16, 1994. Based upon the testimony of the claimant's wife, which the ALJ found credible and persuasive, the ALJ found that the claimant and his wife were away from home between August 25, 1994 and September 5, 1994, and that the claimant did not receive the certified letter until September 5, 1994. The ALJ determined that because the claimant did not have knowledge of the rescheduled appointment prior to September 5, 1994, the claimant's failure to attend the appointment did not subject the claimant to a suspension of benefits.

The ALJ also determined that claimant's first language is Spanish, and that the claimant's wife has accompanied the claimant on prior medical appointments to help the claimant understand the questions posed by examining physicians, and provide an accurate medical history. Therefore, the ALJ granted the claimant's request for a protective order and ordered that the claimant's wife be allowed to accompany the claimant to the pending Division sponsored independent medical examination (IME).

I.

On review, the respondents first contend that the ALJ erroneously determined that Morris was not an agent of the employer or the insurance carrier. In support, the respondents cite Victorio Realty Group Inc. v. Ironwood IX, 713 P.2d 424 (Colo.App. 1985) and Cheney v. Hailey, 686 P.2d 808 (Colo.App. 1984). We perceive no reversible error.

Victorio and Cheney stand for the proposition that an agent is one who acts for or in place of another by authority from him or one who is entrusted with the business of another. The existence of an agency relationship is determined by the intent of the parties as evidenced by their actions. Victorio and Cheney also hold that the existence of an agency relationship is a question of fact.

Because the issue is factual in nature, we are bound by the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Further, the application of the substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).

Here, there was conflicting evidence concerning the relationship between Morris and the respondents. Morris testified that the respondent-insurer requested she arrange an evaluation of the claimant by Dr. Evans. (Tr. p. 73). Similarly, correspondence from Morris to the claimant's counsel dated August 8, 1994, states that she was "enlisted" by the respondent-insurer to arrange the evaluation. However, Morris also testified that she was not employed by either the employer or the respondent-insurer. (Tr. p. 73). The ALJ resolved the conflicts against the respondents by crediting Morris' testimony that she understood her "client" to be the claimant. (Tr. p. 78).

For the first time on appeal, the respondents contend that Morris was acting in the capacity of a medical case manager under § 8-42-101(3.6)(p)(I), C.R.S. (1995 Cum. Supp.) Because this argument was not raised before the ALJ, it will not be considered for the first time on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).

Moreover, even if the respondents' argument were properly before us, we cannot say that the ALJ's findings compel the conclusion sought by the respondents. Therefore, we must uphold the ALJ's determination that Morris was not an agent of the employer or the insurer, and this determination precludes a suspension of benefits under § 8-43-404(3) based upon the claimant's failure to attend the examination on Monday, August 14, 1994.

Next, the claimant contests the ALJ's determination that §§ 8-43-404(3) and 8-42-105(2)(c) contemplate actual knowledge of the rescheduled medical appointment by the claimant before the claimant's benefits may be suspended for failure to attend the "rescheduled appointment." The respondents also argue that the ALJ read "non-existent" provisions into the statute in concluding that the claimant is entitled to actual receipt of the appointment notice. We reject the respondents' argument.

Due process of law requires that all parties receive notice of administrative proceedings and determinations which could result in the deprivation of a significant property interest. See Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965). Furthermore, the court has held that due process of law requires that a workers' compensation claimant receive timely notice of critical determinations affecting their substantial rights. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); see also Munford v. Bowlen, W.C. No. 3-889-101, July 13, 1995 (due process requires that a claimant receive actual notice of a final admission of liability).

Sections 8-43-404(3) and 8-42-105(2)(c) expressly provide for the suspension of benefits upon the claimant's failure to attend a medical appointment. Therefore, due process requires that the claimant be made aware of the appointment before his benefits may be suspended for failure to attend the appointment.

Furthermore, § 8-42-105(2)(c) requires that the respondents notify the claimant by "certified mail" that failure to attend the rescheduled appointment may result in a suspension of benefits. Certified mail requires that the addressee sign an acknowledgment of receipt, and thus, § 8-42-105(2)(c) expressly contemplates that the claimant have actual knowledge of the rescheduled appointment before the respondents sustain their burden of proof to suspend benefits.

However, we have previously stated that a claimant may waive or be estopped from asserting his right to actual notice. Baran v. Denver Broncos Football Club, W.C. No. 3-875-498, November 8, 1995. For instance, avoiding service of certified mail or providing an incorrect address might foreclose the right to actual notice. Klingbeil v. State Department of Revenue, 668 P.2d 930 (Colo. 1993) ; Ault v. Department of Revenue, 697 P.2d 24 (Colo. 1985). Accordingly, in Baran, we concluded that the pertinent issue was whether the claimant's failure to receive a Final Admission of Liability was due to circumstances within the claimant's control. See also Utah Motel Associates v. Denver County Board of Commissioners, 844 P.2d 1290 (Colo.App. 1992); Ward v. Douglas County Board of Commissioners, 886 P.2d 310 (Colo.App. 1994).

Here, the respondents argue that the testimony from the claimant's wife that the claimant was in Mexico between August 25, and September 5, 1994 is insufficient "to explain why no delivery could have been accepted between August 18, 1994 and August 25, 1994." However, the respondents did not present any evidence that the claimant attempted to avoid service of the certified mail prior to August 25 or that his failure to receive the certified mail before August 25 was due to circumstances within his control. (Tr. pp. 134-138). In fact, the respondents concede that the certified return receipt fails to indicate the first date the post office attempted service. Therefore, we cannot say that the record compelled the ALJ to find that the claimant waived his right to actual notice of the rescheduled appointment.

Moreover, the ALJ's determination that the claimant did not receive actual notice of the August 25 appointment until September 5, 1994, supports a conclusion that the respondents failed to sustain their burden to prove that the claimant "failed" or "refused" to submit to the August 25 examination. We have considered the respondents' further contention that the "collective facts" compel a finding that claimant obstructed the medical examinations, however, for the reasons stated above, we are not persuaded.

In reaching our conclusion we agree with the ALJ that the terms "refuses" to submit to examination and "in any way obstructs" the examination require proof beyond the fact that the claimant did not attend the appointments. In a series of cases we have concluded that in the context of § 8-43-404(3), "refuses" contemplates intentional conduct rising above the level of mere negligence, and we adhere to our previously stated position here. Ming v. Amalgamated Sugar Company, W.C. No. 4-147-613, September 8, 1993; Johnson v. General Electric Environmental Co., W.C. No. 3-9310-393, May 24, 1995; Sue v. Ingersoll Rand, W.C. No. 3-803-429 3-890-05, April 26, 1994; see also 1 Larson, Workmens' Compensation Laws, § 13.22 (1994).

The respondents remaining arguments to the contrary do not alter our conclusion. Specifically, there is substantial evidence to support the ALJ's finding that Dr. Evans does not allow a physician selected by the claimant to be present during his examination. (Tr. pp. 107, 108, 141). In any case, it appears that this finding was not pertinent to the ALJ's resolution of the petition to suspend, but rather, was made to support the issuance of a protective order. Therefore, the respondents have failed to establish grounds which afford us a basis to disturb the ALJ's order denying the petition to suspend.

II.

The respondents also contest the protective order which allows the claimant's wife to accompany the claimant to the IME. We conclude that this portion of the ALJ's order is not currently subject to review.

A party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a 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 review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Furthermore, 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); Jones v. Chicken-N-Pasta, W.C. No. 4-197-841, February 3, 1995 (order denying motion for protective order not subject to review ); Figal v. City of Pueblo, W.C. No. 3-690-844, September 12, 1994 (order declining to hold hearing on a motion for protective order) (Court of Appeals dismissed appeal in 94CA1596, because neither ICAP order nor underlying order was final).

The ALJ's order concerning the IME is an interlocutory order concerning discovery, and does not award or deny any benefits or penalties within the meaning of § 8-43-301(2). Therefore, we currently lack jurisdiction to review this portion of the ALJ's order, and must dismiss the claimant's petition to review. See 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).

IT IS THEREFORE ORDERED that the respondents' petition to review the protective order entered by the ALJ on November 9, 1994, is dismissed without prejudice.

IT IS FURTHER ORDERED that the ALJ's order dated November 9, 1994, is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain

____________________________________ Kathy E. Dean

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).

Copies of this decision were mailed December 18, 1995 to the following parties:

Arnulfo Ramos, 37 University Drive, #1, Colorado Springs, CO 80910

Wal-Mart Stores, Inc., P.O. Box 116, Bentonville, AR 72712-0116

Claims Management, Inc., Attn: Merry Jones, P.O. Box 1288, Bentonville, AR 72716

Marsha Kitch, Esq., 1700 Broadway, #1910, Denver, CO 80290

(For the Respondents)

Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903

(For the Claimant)

BY: _______________________