The employer and insurer appeal from the compensation judge’s order denying  their motion to compel discovery of the employee’s tax records.  The employee has filed a motion with this court to dismiss the appeal for lack of subject matter jurisdiction. We dismiss the appeal.

The employee, Donald M. Larson, worked for the employer as a local delivery driver.  He sustained a work injury to his low back on October 20, 2005, and eventually underwent surgical treatment.  The employer and insurer accepted the employee’s claim and began paying wage loss benefits, initially in the form of temporary total disability compensation.  In April 2006, the employer and insurer filed a notice of intent to discontinue temporary total disability compensation.  The employee objected and an administrative conference was held in which the discontinuance was denied.  Thereafter, benefits were reinstated by the employer and insurer. There has been no further litigation in this matter.

The employee found a part-time job performing aircraft restoration work for a new employer beginning in June 2006.  The employee submitted his pay stubs to the employer and insurer and was paid temporary partial disability compensation based on his reported earnings.

In April 2007, and again in June 2007, the employer and insurer requested that the employee execute authorizations to allow the employer and insurer to obtain his federal and Minnesota tax returns.  After the employee  refused to provide the authorizations, the employer and insurer, on September 10, 2007, filed a motion to compel production of the authorizations with the Office of Administrative Hearings.  The employee objected to the motion.

The employer and insurer’s motion was denied by a compensation judge of the Office of Administrative Hearings.  The employer and insurer appeal.

In the motion filed with the compensation judge, the employer and insurer argued that discovery of the employee’s tax returns was warranted by Minn. R. 1420.2200.  In her order, the compensation judge found that the requested discovery was not necessary for the “full adjudication of this case.”  In their appeal to this court, the employer and insurer contend that the compensation judge erred in denying the motion and argue that the compensation judge’s decision affected the merits of the case so that review by this court is appropriate.

Minn. R. 1420.0100 states that “[t]his chapter governs workers’ compensation matters in litigation before the Office of Administrative Hearings.  . . . [T]his chapter applies to litigation initiated by the filing of a petition.”  No petition has been filed by any party in this matter and there is no pending litigation.  In the absence of a proceeding, Minn. R. 1420.2200 does not provide a basis for the discovery requested by the employer and insurer or for consideration of that request by a compensation judge.

Minn. Stat. § 176.271 provides that “all proceedings under this chapter are initiated by the filing of a petition.”  We find no provision in the statute or rules which allows for discovery in the absence of a proceeding and no provision which gives a compensation judge jurisdiction to consider a discovery motion when no litigation exists.  While the employer and insurer contend that the compensation judge’s order affects the merits of the case, this can hardly be so when no case exists at the present time.

The employer and insurer argue that they have no other way to find out if the employee has additional earnings which might affect their obligation to pay temporary partial disability benefits.  Whether or not that argument is correct, we find nothing in the law that would allow a compensation judge to consider a discovery motion in the absence of pending litigation.

The order of the compensation judge is vacated and the appeal of the employer and insurer is dismissed.