W.C. Nos. 4-370-737, 4-404-717Industrial Claim Appeals Office.
June 13, 2000
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Jones (ALJ) insofar as it determined the average weekly wage, failed to award whole person medical impairment benefits, and denied the claim for penalties. We affirm.
The ALJ entered an order on September 10, 1999, and the claimant filed a timely petition to review. The petition to review contains only general allegations of error involving the sufficiency of the evidence and the ALJ’s’ application of the law. The claimant failed to file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
I.
The ALJ awarded permanent partial disability benefits based on loss of the arm at the shoulder pursuant to § 8-42-107(2)(a), C.R.S. 1999. In so doing, the ALJ rejected the claimant’s contention that she sustained thoracic outlet syndrome (TOS) and other injury- related problems, and that she was not at maximum medical improvement (MMI), as found by the Division independent medical examination (IME) physician.
Here, the ALJ resolved conflicts in the expert medical evidence and determined the claimant did not have TOS or any other injury-related problems. Because the ALJ’s findings constitute a plausible interpretation of the testimony and medical records, there is substantial evidence to support the ALJ’s determination that the Division IME physician’s opinions concerning MMI and the absence of whole person medical impairment, were not overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 1999; § 8-42-107(8)(c), C.R.S. 1999. Because the ALJ’s findings concerning these issues are supported by substantial evidence, they must be upheld on review. Section 8-43-301(8), C.R.S. 1999; Postlewait v. Midwest Barricade, 905 P.2d 21
(Colo.App. 1995); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
II.
The claimant alleged the respondents should be subject to penalties for failure to pay temporary disability benefits and permanent partial disability benefits. The ALJ dismissed these claims for lack of evidence. The ALJ’s order was fully supported by the record and correct as a matter of law.
The ALJ also dismissed the claim for penalties based on failure to pay medical benefits. Crediting the testimony of the treating physician, the ALJ determined the respondents provided all reasonable and necessary medical treatment. Because the ALJ’s findings are supported by the evidence, dismissal of the claim for penalties was proper because the respondents did not willfully delay or stop payment for medical benefits. Section 8-43-402(2)(a), C.R.S. 1999; Holliday v. Industrial Claim Appeals Office, 997 P.2d 1212 (Colo.App. 1999), cert. granted, May 15, 2000; Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997).
III.
The ALJ has substantial discretion in the calculation of the claimant’s average weekly wage. Section 8-42-102(3), C.R.S. 1999. The ALJ’s findings are supported by wage records, and we find no abuse of discretion in her calculation of the average weekly wage, especially in the absence of any specific allegation of error See Drywall Products v. Constuble, 832 P.2d 957 (Colo.App. 1991).
IT IS THEREFORE ORDERED ALJ’s order dated September 10, 1999, 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. 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 June 13, 2000
to the following parties:
Dora L. Cataldo, 701 Oak St., #7, Lakewood, CO 80215
Jacque Gilbert, Office Manager, Commercial Design, Inc., P. O. Box 1667, Ft. Collins, CO 80522
Legal Department, Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail Chad P. Hemmat, Esq., 1490 Lafayette St., #203, Denver, CO 80218 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy