IN RE ALVAREZ, W.C. No. 4-396-470 (6/20/02)


IN THE MATTER OF THE CLAIM OF HECTOR ALVAREZ, Claimant, v. COMMUNITY SUPPORT SERVICES, Employer, and SELF-INSURED c/o GALLAGHER BASSETT SERVICES, Insurer, Respondents.

W.C. No. 4-396-470 4-397-562.Industrial Claim Appeals Office.
June 20, 2002.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ Gallegos), dated August 17, 1999, and an order of Administrative Law Judge Corchado (ALJ Corchado), dated January 2, 2001, and an order of Administrative Law Judge Felter (ALJ Felter), dated December 27, 2001. We affirm.

It is necessary to review the procedural history of this case. On August 17, 1999, ALJ Gallegos entered an order requiring the respondents to pay temporary partial disability benefits from October 8, 1998, and ongoing. The respondents appealed the order. However in an Order of Remand dated December 29, 1999, we dismissed the petition to review without prejudice because there was no determination of the amount of temporary partial disability benefits to be paid.

On January 2, 2001, ALJ Corchado entered an order determining the claimant’s average weekly wage for the period October 8, 1998 through January 26, 1999, the stipulated period of temporary partial disability. This order incorporated the order of ALJ Gallegos.

The respondents then appealed the order of ALJ Gallegos and the subsequent order of ALJ Corchado. In an Order of Remand dated October 22, 2001, we affirmed the order of ALJ Gallegos. However, we remanded the matter with instructions to recalculate the claimant’s average weekly wage during the period of temporary partial disability. The remand was based on our conclusion that ALJ Corchado erred in including certain income when determining the claimant’s wages, and by overstating the number of weeks of temporary disability. However, we rejected the respondents’ argument that ALJ Corchado abused his discretion in selecting the method of calculating the average weekly wage during the claimant’s disability.

On December 27, 2001, ALJ Felter entered an order which recalculated the claimant’s average weekly wage in accordance with the instructions contained in our October 22 order. Thus, ALJ Felter ordered the respondents to pay temporary partial disability benefits, for the relevant period of time, “based on two-thirds of [the claimant’s] temporary wage loss as measured by an average weekly wage of $503.02.”

The respondents filed a timely petition to review ALJ Felter’s order, and reiterated their intention to appeal the prior orders of ALJ Gallegos and ALJ Corchado. However, with one exception, the respondents’ petition to review contains only general allegations of error concerning the sufficiency of the evidence and the correctness of the legal conclusions contained in the orders. The only specific allegation is that ALJ Corchado erred in excluding unspecified evidence. The respondents have not filed a brief in support of their petition to review.

Insofar as the respondents challenge the orders of ALJ Gallegos and ALJ Corchado, we have previously ruled on the respondents’ contentions, and the respondents provide no new arguments in this appeal. Consequently, we see no basis to depart from our prior rulings and they are incorporated herein as if fully set forth.

With regard to the order of ALJ Felter, the respondents have not cited any specific findings which they consider to be unsupported by the evidence, nor have they pointed out any specific errors of law. Our review of ALJ Felter’s order indicates the findings are in accordance with our October 22 Order of Remand, and supported by substantial evidence. Consequently, we perceive no error in ALJ Felter’s order.

We have also considered the respondents’ assertion that ALJ Corchado erred in excluding certain evidence. However, our review of the hearing transcript fails to reveal that ALJ Corchado excluded any evidence offered by the respondents. Consequently, we are unable to ascertain the basis of this allegation, and we conclude that it affords no basis for interfering with any of the orders entered in this case.

IT IS THEREFORE ORDERED that the order of ALJ Gallegos dated August 17, 1999, is affirmed.

IT IS FURTHER ORDERED that the order of ALJ Corchado dated January 2, 2001, is affirmed, except as the order was modified by our Order of Remand dated October 22, 2001, and the order of ALJ Felter dated December 27, 2001.

IT IS FURTHER ORDERED that the order of ALJ Felter dated December 27, 2001, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain
___________________________________ Robert M. Socolofsky

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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed June 20, 2002 to the following parties:

Hector Alvarez, 520 Inca St., Denver, CO 80204

Community Support Services, _ Colorado Options in the Community, 16 Farber Rd., Princeton, N.J. 08540-5913

Gallagher Bassett Services, The Quorum West, 7935 E. Prentice Ave., #305, Englewood, CO 80111

Nancy Smith, Selectech Insurance Company, 40 Wantage, Branchville, N.J. 07890

Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215 (For Claimant)

Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)

By: A. Hurtado