W.C. No. 4-415-688Industrial Claim Appeals Office.
August 16, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which denied temporary disability benefits. We affirm.
On February 3, 1999, the claimant suffered an admitted right arm injury. The claimant underwent surgical treatment which temporarily precluded him from performing his regular employment. Based upon the evidence presented at a hearing on August 27, 1999, the ALJ found that the respondents tendered an offer of modified employment to begin March 31, 1999, and described as “operation of a compactor.” The claimant believed the job would cause him to exceed his medical restrictions and, therefore, the claimant did not accept the offer. However, the ALJ found the modified employment was within the medical restrictions imposed by the treating physician. Therefore, relying on § 8-42-105(3)(d)(I), C.R.S. 1999, the ALJ denied the request for temporary disability benefits from March 31, 1999, to April 5, 1999.
On review, the claimant contends the ALJ erroneously denied temporary disability benefits because the “employer did not follow work restrictions.” However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the post-injury loss of wages. Section 8-42-103(1), C.R.S. 1999. Temporary disability benefits terminate upon the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 1999. Section 8-42-105(3)(d)(I) terminates benefits when the attending physician gives the claimant a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589
(Colo.App. 1998). Furthermore, the attending physician’s determination of the claimant’s ability to perform regular or modified employment is dispositive. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
The claimant does not dispute the ALJ’s findings that the respondents offered modified employment, that he received the offer and that he did not begin the offered employment. Furthermore, the claimant has not provided a transcript of the hearing on August 27. See 8-43-301(2), C.R.S. 1999 (appealing party shall order any transcript relied upon for the petition to review and arrange payment of the transcript). Consequently, we must presume there is substantial evidence in the record to support the ALJ’s finding that the job of compactor operator was within the claimant’s medical restrictions. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, the ALJ’s findings support the conclusion the claimant is not entitled to temporary disability benefits for the disputed period. Section 8-42-105(3)(d)(I).
The ALJ’s order is based on the claimant’s failure to begin the March 31, 1999, offer of employment. Therefore, insofar as the record may contain evidence to support the claimant’s contention that, prior to March 31 the employer did not “follow work restrictions,” imposed for the industrial injury, the claimant’s argument does not compel a different result.
Finally, we note the ALJ did not reserve any issues and the claimant does not allege the ALJ failed to resolve his claim for temporary disability benefits between April 6, 1999, and April 16, 1999. Under these circumstances, we understand the ALJ as having also denied the claim for temporary disability benefits from April 6, 1999, to April 16, 1999, on the same grounds.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 28, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 16, 2000 to the following parties:
Robert A. Vaughan, 1154 E. 5th St., Loveland, CO 80537
D L M Structures, Inc., 706 Riverside Ct., Berthoud, CO 80513-8688
American Compensation Insurance Co., 7400 E. Orchard Rd., #3025, Englewood, CO 80111
Stephen A. Jones, Esq., 600 17th St., #2240 South, Denver, CO 80202 (For Respondents)
Douglas P. Ruegsegger, Esq., 600 17th St., #1600 North, Denver, CO 80202
BY: le