W.C. Nos. 4-290-389, 4-301-696Industrial Claim Appeals Office.
August 27, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Friend (ALJ), insofar as the ALJ ordered reinstatement of sick and annual leave time. We reverse the contested portion of the order.
The ALJ found that the claimant sustained compensable “mental impairment” as a result of racial harassment on the job. Further, the ALJ determined that the authorized treating psychiatrist restricted the claimant from working between March 19, 1996 and April 9, 1996, and June 24, 1996 through July 14, 1996. During these periods of time, the respondent apparently charged the claimant with earned sick or annual leave.
Under these circumstances, the ALJ found that the respondent is obliged to “re-instate any sick or annual leave time charged to the claimant” during the periods he was off work pursuant to the psychiatrist’s orders. The ALJ also determined that the respondent is obliged to provide a new “authorized provider” because the treating psychiatrist died.
The respondent has not filed a brief in support of its petition to review the ALJ’s order. Moreover, the respondent did not appear at the hearing and offer evidence in its own behalf. Consequently, the effectiveness of our review is limited, and we consider only those issues specifically raised in the petition to review.
The respondent first contends that the ALJ erred in determining that the claimant is “entitled to reimbursement of sick and/or vacation leave after June 27, 1996.” In support of this contention, the respondent states that the Division of Workers’ Compensation claim file includes a Final Admission of Liability, accompanied by a report of Dr. Childers, indicating that the claimant reached maximum medical improvement (MMI) on June 27, 1996. The respondent argues that because the claimant did not seek a division-sponsored independent medical examination (IME) on the issue of MMI, Dr. Childers’ report is “conclusive” as to the date of MMI. The respondent also argues that we should exclude “June 27, 1996 through July 14, 1996” as dates during which the claimant was suffering from temporary total disability.
As a general matter, we agree with the respondent that the ALJ erred in ordering “reinstatement” of sick or annual leave, but for reasons different than those stated by the respondent. I Schrambeck v. Department of Administration, W.C. No. 3-938-216
(May 22, 1992), we held that ALJs lack jurisdiction to order “reinstatement” of sick and vacation leave charged to a claimant by an employer. In Schrambeck, we recognized that §8-42-124(2) (4), C.R.S. (1996 Cum. Supp.), authorize ALJs to award full temporary disability benefits in cases where an employer has charged a claimant with earned sick or vacation time during the disability. Put another way, an employer may not reduce its liability for workers’ compensation disability benefits when charging the claimant with earned leave. See Public Service Co. v. Johnson, 789 P.2d 487 (Colo.App. 1990). However, Schrambeck holds that these statutes do not authorize ALJs to determine whether an employer properly charged sick or vacation time under its contract. Rather, this determination is properly reserved for another forum. Cf. Lewis v. Scientific Supply Company, Inc., 897 P.2d 905 (Colo.App. 1995) (workers’ compensation tribunals are limited in jurisdiction to those powers expressly created by statute).
The respondent also contends that the ALJ erred in awarding temporary total disability benefits after June 27, 1996. However, the ALJ’s order does not appear to award any temporary total disability benefits. Instead, the relief granted by the ALJ was limited to an order for a change of physicians and the “reinstatement” of sick and annual leave time. Consequently, the respondent’s argument is premature.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 12, 1997, is reversed insofar as it ordered “reinstatement” of sick and annual leave time.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum.Supp.).
Copies of this decision were mailed August 27, 1997 to the following parties:
Gary Calbart, 2640 Marion St., Denver, CO 80205
City of Aurora, 1470 S. Havana St., Ste. 302, Aurora, CO 80012
Sue Leidolph, Lost Time Control, 1776 S. Jackson St., Ste. 306, Denver, CO 80210-3803
Ann McEntire, Esq., 1470 S. Havana St., Ste. 302, Aurora, CO 80012 (For the Respondent)
By: _______________________________