W.C. No. 4-146-033Industrial Claim Appeals Office.
August 8, 1995
FINAL ORDER
The claimant has filed a Petition for Review of an order of Administrative Law Judge Rumler (ALJ) which denied additional temporary disability and medical benefits. We modify the order, and as modified, affirm.
The claimant’s petition to review alleges generally that the “hearing officer acted in excess of his authority.” The petition further asserts that the “Findings of Fact do not support the Order, and the Conclusions of Law and Order are contrary to controlling law.” However, the claimant did not file a brief in support of the petition. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The ALJ found that the claimant’s need for psychiatric treatment with Dr. Medelman is not causally related to the claimant’s industrial exposure to noxious fumes on July 22, 1992. The ALJ further determined that Dr. Medelman is not an authorized treating physician. Therefore, the ALJ concluded that the respondents are not liable for Dr. Medelman’s treatment of the claimant, and denied a claim for medical benefits in the form of treatment by Dr. Medelman. The ALJ also denied additional temporary disability benefits.
We have reviewed the ALJ’s findings of fact and the record, including a transcript of the hearing on August 23, 1994 and Dr. Medelman’s deposition testimony. The ALJ’s findings of fact are amply supported by the record, and thus, must be upheld. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Further, the ALJ’s findings support a conclusion that Dr. Medelman’s treatment is not compensable. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986); cf. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Therefore, we perceive no basis on which to set aside the ALJ’s denial of medical benefits in the form of treatment by Dr. Medelman.
However, the transcript reveals that at the commencement of the hearing, the claimant withdrew the issue of temporary disability, and the respondents did not object. Tr. pp. 3, 6-7. Consequently, the issue of temporary disability was not properly before the ALJ, and the ALJ acted in excess of her authority in denying further temporary disability benefits See § 8-43-207(1), C.R.S. (1994 Cum. Supp.); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, (Colo.App. 1990); Northwest Transport v. Industrial Claim Appeals Office (Colo.App. No. 94CA1740, April 13, 1995) (not selected for publication) (“simply because a party checks an issue on the application for hearing or response does not mean that the party is required to pursue that issue. A party may choose not to pursue an issue or ask that it be determined later.”).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 7, 1994, is set aside insofar as it denies additional temporary disability benefits. In all other respects the ALJ’s order 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed August 8, 1995 to the following parties:
Marie Gordon, 400 2nd St., #27, Ft. Lupton, CO 80621
Olsten Temporary Services, Attn: Jim Mason, 1790 30th St., Boulder, CO 80301-1022
Hartford Accident Indemnity Co., Attn: Fran Wood, P.O. Box 22815, Denver, CO 80222
OHMEDA, Attn: Valerie Bass, 1315 Century Dr., Louisville, CO 80027
John Hoyman, Esq., 1115 11th Ave., Greeley, CO 80631
(For the Claimant)
Robert L. McGahey, Jr., Esq., 3464 S. Willow St., Denver, CO 80231-4599
(For the Respondents)
BY: _______________________