W.C. No. 4-508-104Industrial Claim Appeals Office.
August 21, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability benefits. We affirm.
In so far as pertinent, the record reveals the claimant suffered an admitted low back injury on June 14, 2001, while employed as a custodian for the respondent-employer. On July 3, 2001, Dr. Schwender imposed restrictions which precluded the claimant from lifting more than 10 pounds, as well as pushing/pulling, bending, twisting/turning, kneeling, squatting, and climbing ladders.
At the time of the injury, the claimant was concurrently employed as a drug and addiction counselor for the Pikes Peak Mental Health Center (PPMH). The claimant requested an award of temporary disability benefits commencing November 20, 2001, in connection with his wage loss from PPMH.
The claimant testified the industrial injury prevented him from performing the duties of a drug counselor and therefore, PPMH reassigned him to a desk job until November 19, 2001, when Dr. Jenks imposed new restrictions which PPMH was unable to accommodate. (Tr. pp. 12, 16. 26, 27, 31). Paradoxically, the claimant also testified he was placed on medical leave in August 2001. (Tr. p. 16). In any event, the claimant was unable to produce any written report from Dr. Jenks which contained new restrictions, and admitted he never provided PPMH with any written restrictions from Dr. Jenks. Further, the record contains payroll statements which indicate the claimant continued to earn wages from PPMH through October 2001.
The ALJ found the claimant’s testimony that he was physically disabled from performing his regular employment at PPMH was not credible. Therefore, the ALJ determined the claimant failed to prove an entitlement to temporary disability benefits, which made it unnecessary to resolve the respondents’ contention that temporary disability benefits are permanently barred under § 8-42-105(4) (“where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury”).
The claimant’s Petition to Review asserts general allegations of error. See § 8-43-301(8), C.R.S. 2001. The claimant also contends the ALJ erred in failing to take into account a November 19, 2001 letter “terminating the Claimant’s employment with Pike’s Peak Mental Health secondary to” the industrial injury. However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To receive temporary total disability benefits, the claimant must prove that the industrial injury caused a “disability” lasting more than three work shifts, that he left work as a result of the disability, and that the disability caused an actual wage loss. Section § 8-42-103(1)(a), C.R.S. 2001; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Where the claimant fails to prove a “disability” caused by the industrial injury, no temporary disability benefits are due even if the claimant has suffered some wage loss. The term “disability” refers to the claimant’s physical inability to perform regular employment. See also McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Whether the claimant has proven a “disability” is a question of fact for resolution by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Further, under that statute, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Further, the ALJ’s findings of fact are supported by substantial evidence and plausible inferences drawn from the record. Cf Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to credit claimant’s testimony). Consequently, the findings are binding on review.
Contrary to the claimant’s contention, the ALJ did not fail to “take into account” the letter submitted by the claimant dated November 19, 2001, in which PPMH purportedly terminated the claimant’s employment because it was unable to accommodate the claimant’s medical restrictions. Rather, due to discrepancies in the claimant’s testimony, the ALJ was not persuaded the November 19 letter was authentic. (Findings of Fact 14, 15; Conclusions of Law 1). Therefore, the ALJ gave the letter no probative weight. We have no basis for disturbing this determination.
In the absence of any other specific argument, we cannot say the ALJ erred in determining the claimant failed to establish his entitlement to temporary disability benefits. The ALJ’s findings support the denial of benefits, and the order is consistent with applicable law.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 21, 2002 to the following parties:
Donald L. Drake, 2860 Preakness Way, Colorado Springs, CO 80916
Focus on the Family, 8605 Explorer Dr., Colorado Springs, CO 80920-1049
Machelle K. Gielarowski, Esq., 712 N. Tejon St., Ste. 1, Colorado Springs, CO 80903-1012 (For Claimant)
Pinnacol Assurance, Michael L. Steiner, Esq. -Interagency Mail (For Respondents)
Elizabeth Koch, Esq., 600 Seventeenth St., Ste. 1600N, Denver, CO 80202
BY: A. Hurtado