W.C. No. 4-528-574.Industrial Claim Appeals Office.
July 7, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 24, 2005, which denied his request for temporary total disability (TTD) benefits retroactive to October 5, 2004. We affirm.
The claimant suffered a crush injury to his right foot which required amputation of two toes. Thereafter the claimant continued to complain of pain in his right foot, so Dr. O’Brien recommended a right forefoot amputation. The claimant declined the surgery and consequently was placed at maximum medical improvement (MMI) in October 2002.
In an order issued in August 2003 the claimant was denied permanent total disability benefits. However, the claimant was awarded future medical benefits as provided under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Because his pain symptoms continued, the claimant sought additional medical treatment in the form of the forefoot amputation previously recommended. However, the surgeon refused to perform the surgery until the claimant’s diabetes was stabilized.
The claimant then filed a petition to reopen the claim which alleged a worsening of condition and requested additional TTD. In an order dated February 17, 2004, ALJ Felter determined the claimant failed to prove a worsening of condition, and therefore denied the petition to reopen. However, in accordance with the prior award of Grover medical benefits, ALJ Felter ordered the respondents to pay the costs of the forefoot amputation surgery and medical treatment to stabilize the claimant’s diabetes. We affirmed the order of ALJ Felter on August 27, 2004. In so doing we noted that the claimant had not yet undergone the forefoot amputation surgery and ALJ Felter had not purported to determine whether the amputation would cause a worsening of condition for purposes of obtaining additional TTD disability benefits. Therefore, we concluded the claimant’s entitlement to additional TTD and permanent disability were premature and not properly before us on review of the February 17 order.
The amputation surgery was subsequently scheduled for October 5, 2004. However, the claimant did not show up the surgery.
The claimant then petitioned to reopen the claim and alleged a worsening of his condition since February 17, 2004. Relying on a Dr. Jenks’ November 18, 2004 note that the claimant would be off work for 8 weeks after the amputation surgery, the claimant requested additional TTD benefits retroactive to October 5, 2004.
Based upon the evidence presented at a hearing on February 8, 2005, the ALJ issued the order on review. The ALJ found the claimant failed to prove a worsening of his condition from the industrial injury after February 17, 2004. The ALJ also determined the claimant was collaterally estopped from relitigating the issues decided by ALJ Felter. Therefore, the ALJ denied the petition to reopen and the request for TTD retroactive to October 5, 2004. However, the ALJ did not purport to determine the claimant’s entitlement to TTD benefits after the amputation surgery actually occurred.
On review of the March 24 order, the claimant contends the ALJ erroneously failed to order the respondents to provide TTD benefits while the claimant gets his diabetes under control. The claimant also contends the evidence compels a finding the surgery would cause a worsening of condition that would temporarily preclude him from working for at least 8 weeks. Therefore, the claimant argues he is entitled to an order requiring the respondents to pay TTD benefits retroactive to October 5, 2004. We perceive no basis to disturb the ALJ’s order.
Because the issue of TTD was closed, the claimant was precluded from obtaining further TTD benefits unless he first established grounds to reopen the claim under § 8-43-303 C.R.S. 2004. Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004). Further, the claimant was required to prove that the worsened condition caused a “greater impact” on the claimant’s temporary work capacity than existed at the time of MMI before he would be entitled to additional TTD benefits. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
In the absence of an abuse of discretion, we may not disturb the ALJ’s determination that the claimant failed to sustain his burden of proof to reopen the claim. Osborne v. Industrial Commission, 725 P.2d 63
(Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) Rosenberg v. Board of Education of School District #1, 710 P.2d 1095
(Colo. 1985).
Further, the party asserting error has the burden to present a record sufficient to prove the ALJ’s findings are not supported by the evidence. If the appealing party fails to provide an adequate record, we must presume the ALJ’s pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988).
Here, the claimant has not provided a transcript of the February 8, 2005 hearing. Accordingly, we must assume the ALJ’s finding that the claimant failed to prove his condition worsened after February 17 is supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, supra. Further, the finding supports the conclusion the claimant failed to establish entitlement to additional TTD benefits. Under these circumstances, we need not consider the claimant’s particular argument that he was entitled to TTD while receiving treatment to stabilize his diabetes.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 24, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Curt Kriksciun
Jose Sanchez, Colorado Springs, CO, Shelly Horn, Lafarge Corporation, Denver, CO, John Shelonko, Lafarge Corporation, Herndon, VA, Insurance Company of the State of Pennsylvania, c/o Alixe Virbick, Gallagher Bassett Services, Inc., Englewood, CO, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Karen Gail Treece, Esq., Denver, CO, (For Respondents).