Opinion
W.C. No. 4-545-899.
January 10, 2007.
ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated September 25, 2006, that determined which vocational counselor would develop a formal vocational rehabilitation plan and also be the vocational counselor on that plan. We dismiss the petition to review without prejudice.
The ALJ's pertinent findings of fact are as follows. The matter had been set for hearing on a number of issues, including permanent total disability. However, prior to the hearing the respondents made an offer of vocational rehabilitation under § 8-42-111(3), C.R.S., 2006. The respondents had asked William Hartwick, a vocational counselor, to contact the claimant to initiate a formal vocational rehabilitation plan. The claimant accepted the offer of vocational rehabilitation. Hartwick met with the claimant prior to the hearing and developed a general framework for the development of a formal vocational rehabilitation plan, which would assist the claimant to successfully return to work. The claimant asked the ALJ to decide which vocational counselor should meet with the claimant to develop the formal vocational rehabilitation plan and which vocational counselor should be the vocational counselor on the rehabilitation plan. Hartwick opined that he could help the claimant be come employed and the ALJ found he was the best person to be the vocational counselor on the case. Therefore, the ALJ ordered that Hartwick would be the vocational counselor and develop the formal vocational rehabilitation plan.
The claimant appealed on a number of grounds. However, the respondents have argued and we agree that the order is not final and, therefore, not presently reviewable. Under § 8-43-301(2), C.R.S. 2006, 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 which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by this statute, and consequently, are not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory); CF I Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986).
We have previously held orders to be interlocutory in situations where the claimant seeks permanent total disability benefits but the respondents offer and the ALJ orders vocational services. Perez v. Construction Associates W. C. No. 4-452-628 (February 26, 2004). In the case of White v. City of Woodland Park, W.C. 3-939-350 (November 21, 1990), cited by the respondents, we held that an order which denied the claimant's motion for protective orders and required the claimant to submit to a vocational evaluation was interlocutory. We adhere to our previous conclusions. Because we concluded that the order is interlocutory it is unnecessary to address the remaining issues raised by the claimant.
The claimant contends that if § 8-43-301(2) renders the ALJ's order interlocutory, then the claimant is held in involuntary servitude in violation of the Thirteenth Amendment of the United States. Here, the claimant after accepting an offer of vocational rehabilitation must undergo an evaluation and receive rehabilitation services from a counselor viewed by the claimant as undesirable. It is extremely doubtful that these circumstances create the sort of "involuntary servitude" contemplated by the provisions of the Thirteenth Amendment to the United States Constitution. See e.g., United States v. Kozminski, 487 U.S. 981 108 S.Ct. 2751 (1988) (involuntary servitude under the Thirteenth Amendment requires confinement enforced by physical or legal coercion). In any event, we lack jurisdiction to address the claimant's constitutional attack on § 8-43-301(2), which we interpret as a facial challenge to the statute's constitutionality. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Accordingly, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the petition to review the ALJ's order dated September 25, 2006, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksciun
______________________________
Thomas Schrant
Irma Yvone Sais, 5323 Independence, Arvada, CO, Life Care Centers of Westminster, 14499 East Hampden Ave., Aurora, CO, Constitution State Services Company, Myra Jelinek, P.O. Box 173762, Denver, CO, John A. Kintzele, Esq., 1317 Delaware Street, Denver, CO Denver, CO, (For Claimant)
Blackman Levine, LLC, Lawrence D. Blackman, Esq., 999 18th Street, Suite 1755, Denver, CO, (For Respondents)