W.C. No. 4-219-643Industrial Claim Appeals Office.
December 12, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) which awarded temporary total disability benefits, assessed a penalty for failure to insure, and assessed an additional penalty for failure timely to admit or deny liability. We affirm.
The respondent has not filed a brief in support of its petition to review. Further, the only specific allegation contained in the petition to review is that the ALJ erred in awarding temporary total disability benefits after the claimant was terminated from his employment on December 5, 1994.
Because the respondent has not filed a brief the effectiveness of our review is limited. Moreover, because the respondent has not procured a transcript of the hearing we must assume that the ALJ’s pertinent findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
With respect to the award of temporary disability benefits, the ALJ found that the claimant was at fault for the loss of his employment on December 5. However, the ALJ also found that the claimant was still physically restricted from performing his regular duties, and was unable to find subsequent employment “even though he has actively looked for work.” Applying the “totality of the circumstances” test set forth by the Court of Appeals in PDM Molding Co., Inc. v. Stanberg, 885 P.2d 280 (Colo.App. 1994), the ALJ concluded that the claimant’s wage loss, subsequent to December 5, was causally connected to the industrial injury.
In its petition to review, the respondent contended that the decision of the Court of Appeals in PDM Molding Co., Inc. was incorrect because a claimant’s temporary disability benefits should terminate, after a separation for cause, regardless of “concern over a claimant’s employability thereafter.” However, as the claimant points out, the Supreme Court affirmed the decision of the Court of Appeals in PDM Molding Co., Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Moreover, the Supreme Court imposed a less stringent standard than the Court of Appeals, holding that a claimant must prove only that the “work-related injury contributed to some degree” to the post separation wage loss.
It follows that the ALJ correctly held that the claimant was entitled to temporary total disability benefits commencing December 5. The ALJ found that the claimant was physically restricted from performing his pre-injury employment on December 5, and was subsequently unable to locate employment despite his efforts to do so. Therefore, the findings support the order.
We have reviewed the remainder of the order and perceive no error.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 10, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 12, 1995 to the following parties:
Curtis L. Palmer, 600 S. Dayton, #4-104, Denver, CO 80231
Bill Pendleton, Catalyst Investments/ECI Employment, Inc., 43 Inverness Drive East, Englewood, CO 80112
Susan D. Phillips, Esq., 155 S. Madison St., #330, Denver, CO 80209
(For the Claimant)
By: _____________________