W.C. No. 3-745-406Industrial Claim Appeals Office.
May 12, 1999.
FINAL ORDER
The pro se claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied the claimant’s request for approval of a vocational rehabilitation plan, and awarded temporary disability benefits. We affirm.
The claimant sustained a serious injury in 1984 and was unable to return to his previous occupation. However, the respondent-employer reemployed the claimant in modified duties until December 31, 1991. At that time, the claimant was laid off.
Beginning in 1990, the claimant enrolled at the Colorado School of Mines in an attempt to obtain his master’s degree in geology. In May 1993, the Director of the Division of Workers’ Compensation (Director) found the claimant eligible for vocational rehabilitation benefits under former § 8-49-101 (4). In September 1993, the designated vocational rehabilitation counselor began to conduct research concerning the possibility of returning the claimant to work as a high school geology or science teacher. However, the claimant preferred to obtain his master’s degree in geology and develop his own business as a Geographic Information System Data Analyst (GISDA). This profession apparently involves the development, marketing, and analysis of computer maps of geologic strata.
The ALJ found the claimant actually went into business in 1993, and obtained his master’s degree in 1994. In 1996, he submitted a “vocational rehabilitation plan” prepared by his own vocational counselor, Ms. Bartmann. This plan requested $70,417 in vocational expenses, exclusive of rehabilitation maintenance benefits. These expenses included the cost of 36 credit hours of tuition ending in December 1994, and approximately $52,600 in computer and office equipment.
The ALJ denied the claimant’s request for approval of the vocational rehabilitation plan designed to establish him in business as a GISDA. The ALJ found that the plan submitted by the claimant and vocational counselor Bartmann did not comply with Rule of Procedure V (D) (3), 7 Code Colo. Reg., 1101-3 at 13-14, because it failed to establish a starting and an ending date, the amount to be paid for tuition and fees was “ambiguous given the testimony,” and the ALJ was unable to distinguish what amount was reasonable for vocational rehabilitation as opposed to “normal capital investment” for a new business. Further, the ALJ noted that the plan did not establish the amount of rehabilitation maintenance benefits to be paid.
On review, the claimant contends the ALJ erred in refusing to approve the vocational rehabilitation plan which he submitted at the hearing. Although the exact thrust of the claimant’s arguments is unclear, he appears to argue that the evidence required the ALJ to approve the proposed plan because it had been “accepted” by an employee of the Department of Human Services, the plan would have incorporated the claimant’s preexisting skills, and the 52 weeks of rehabilitation maintenance benefits could have been “satisfied by the 52 weeks that it took claimant to begin and finish his candidacy for a master’s degree.” We find no error.
Initially, we note that the ALJ had jurisdiction to determine the propriety of the claimant’s vocational rehabilitation plan because this case involves the type of a dispute contemplated by Rule V (D) (7), 7 Code Colo. Reg., 1101-3 at 15. Further, the ALJ had discretion to approve, disapprove, or modify the proposed plan. Rule V (D) (5), 7 Code Colo. Reg., 1101-3 at 14. In exercising his discretion, the ALJ was required to consider whether the proposed plan complied with the rules of procedure so as to ensure sufficient clarity and avoid exposing the respondents to excessive liability. Husson v. Babbitt, 728 P.2d 750
(Colo.App. 1986).
Because the issue is discretionary, we may not interfere with the ALJ’s order unless an abuse has been shown. An abuse is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Here, the claimant failed to procure a complete transcript of the hearings held on April 29, 1998, and June 11, 1998. Consequently, we must presume the ALJ’s findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The factual assertions contained in the claimant’s brief may not be considered as evidence on review. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
The ALJ’s findings of fact support his conclusion that the vocational rehabilitation plan proposed by the claimant fell short of compliance with the specific requirements of Rule of Procedure V (D) (3). As a result, it was impossible for the ALJ to ascertain the total cost of the proposed plan, and whether the cost reflected the true expense of rehabilitation, as opposed to capital investment in the claimant’s business. Under these circumstances, we cannot say the ALJ abused his discretion in refusing to approve the rehabilitation plan submitted by the claimant.
The claimant’s brief does not address the issue of temporary disability benefits. However, as we understand the ALJ’s order, he awarded temporary total disability benefits from May 1, 1992, to November 1, 1993. The ALJ recognized the claimant may be entitled to temporary partial disability benefits until “some point in 1994 or 1995,” but reserved ruling on that issue because the claimant failed to present evidence to establish the extent of his actual wage loss after starting the business in November 1993. It was within the ALJ’s discretion to reserve this issue for future determination. Section 8-43-301(5), C.R.S. 1998.
To the extent the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 12, 1999 the following parties:
James R. Piper, 11097 West Roxbury Avenue, Littleton, CO 80127
Manville Products Corp., P.O. Box 5180, Denver, CO 80217
National Union Fire Ins. Co., c/o Crawford Co., 7000 S. Yosemite, Suite 150, Englewood, CO 80111
Clifford E. Ely, Esq., 1777 S. Harrison St., Suite 906, Denver, CO 80210
James R. Clifton, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Suite 400, Denver, CO 80227 (For Respondents)
BY: le