W.C. No. VR 98-1Industrial Claim Appeals Office.
June 8, 1999.
ORDER
Attorney Steven U. Mullens (Mullens) seeks review of an order of the Director of the Division of Workers’ Compensation (Director) which established parameters for future vocational evaluations of Mullens’ clients by vocational rehabilitation consultant Martin Rauer (Rauer). We dismiss the petition to review without prejudice.
The procedural history underlying the Director’s order is complex. In March 1997 Mullens represented a workers’ compensation claimant seeking permanent total disability benefits. Counsel for the respondents in that case requested Rauer to perform a vocational evaluation of the claimant. The Director found that during the course of the evaluation Rauer “made an unprofessional comment to Mr. Mullens.” On March 11, 1997, Mullens wrote a letter to Rauer stating that Rauer should decline any future assignments to evaluate Mullens’ clients.
Apparently, the underlying workers’ compensation claim was resolved. However, Rauer sought a hearing before an Administrative Law Judge (ALJ) to determine Rauer’s prospective authority to conduct vocational evaluations of Mullens’ clients. ALJ Felter declined to conduct a hearing on this issue stating that, “ALJ’s do not grant declaratory judgments.” Rauer then sought similar relief from the Director. The Director referred the matter back to ALJ Felter for purposes of conducting a hearing on the facts.
On January 21, 1999, the Director entered the order in dispute. The Director found that Rauer behaved unprofessionally at the March 1997 evaluation, but concluded Rauer’s actions did not constitute sufficient grounds to prohibit him from conducting future evaluations of Mullens’ clients. The Director ordered that if an insurer designates Rauer to evaluate one of Mullens’ clients Rauer may conduct the evaluation “at a site outside of Mr. Mullens’ offices, as long as he gives reasonable written notice and the location is within a reasonable distance from Mr. Mullens’ offices.” The Director also ordered that Rauer or the claimant, or both, may have an attorney present at any evaluation conducted by Rauer. Finally, the Director ordered that Rauer or the claimant, or both, are entitled to make audio or videotapes of any evaluation.
Mullens appealed the Director’s order arguing that it is contrary to the legislative intent underlying the Workers’ Compensation Act; that Rauer lacks standing to raise the issue; that the Director’s order amounts to illegal “rule making”; and that the Director abused her discretion. We dismiss Mullens’ appeal without prejudice.
Our authority to conduct appellate review of orders issued by the Director is contained in § 8-43-301(2), C.R.S. 1998. The statute provides that a “dissatisfied party” may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” Thus, an order is not subject to review unless it involves a final award or denial of workers’ compensation benefits, or an award or denial of penalties. See Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998); BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
Here, the Director’s order does not involve an award or denial of benefits or penalties. To the contrary, it concerns the conduct of potential vocational evaluations in cases which may or may not arise in the future. Consequently, we lack jurisdiction to review the Director’s order. See Ramos v. Wal-Mart Stores, Inc., W.C. No. 4-163-653 (August 15, 1997) (ALJ’s order refusing to prohibit prehearing judges from considering any issue in workers’ compensation claim not final and reviewable).
In reaching this result we do not express, and should not be understood as expressing, any opinion concerning the Director’s jurisdiction to enter the January 21 order, nor the propriety of the order. Should the Director’s order impact the conduct of a specific workers’ compensation claim involving the award or denial of benefits or penalties, the issue might become reviewable at that time. See American Express v. Industrial Commission, 712 P.2d 1132 (procedural order may become reviewable as incident to a final award of benefits).
IT IS THEREFORE ORDERED that attorney Mullens’ petition to review the Director’s order dated January 21, 1999, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for writ of certiorari 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. 1998.
Copies of this decision were mailed June 8, 1999 the following parties:
Martin L. Rauer, Fast Track Rehabilitation, 2121 E. LaSalle, Ste. 205, Colorado Springs, CO 80909
Gregory B. Cairns, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210 (For Rauer)
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (Pro se)
BY: A. Pendroy