W.C. No. 4-347-839Industrial Claim Appeals Office.
February 23, 2000
FINAL ORDER
The respondent seeks review of an order of former Administrative Law Judge Gandy (ALJ) which required them to pay further temporary total disability benefits. We affirm.
On April 21, 1997, the claimant suffered a work-related back injury. The respondent filed a General Admission of Liability for the payment of temporary total disability benefits commencing August 1, 1997. On September 9, 1998, the respondents filed a General Admission of Liability which terminated temporary disability benefits effective August 26, 1998 and admitted liability for permanent total disability benefits commencing August 27, 1998, subject to an offset for the claimant’s receipt of social security retirement benefits. The September General Admission did not list a date of maximum medical improvement (MMI).
The ALJ found that the claimant has not been determined to be at MMI. Therefore, the ALJ determined that the admission of liability for permanent total disability benefits is premature and that the claimant is entitled to continuing temporary disability benefits. Consequently, the ALJ ordered the respondent to reinstate temporary total disability benefits.
The respondent’s Petition to Review alleges that the ALJ’s findings of fact, and conclusions of law are not supported by the evidence. In particular, the respondent asserts that the ALJ’s findings do not support the conclusion that the claimant is entitled to ongoing temporary disability benefits. Furthermore, the respondent argues the award of temporary disability benefits is not supported by the applicable law. However, the respondent has not filed a brief in support of the Petition for Review, and consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
It is the claimant’s burden to establish his initial entitlement to temporary disability benefits. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). However, once established, temporary total disability benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1998 [amended in 1999 for injuries occurring on or after July 1, 1999]. Under §8-42-105(3)(a) temporary disability benefits continue until the claimant reaches MMI. The statute also provides that temporary total disability benefits terminate when the claimant returns to regular or modified employment, is released to regular employment or fails to begin a written offer of modified employment within the medical restrictions imposed by the attending physician. See Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
The respondent’s argument notwithstanding, the record supports the ALJ’s finding that the claimant has not been placed at MMI. In fact, before the ALJ, the respondent conceded that the claimant is not at MMI. (See Respondent’s Position Statement, December 15, 1998). Therefore, we must uphold the ALJ’s determination that the claimant’s temporary disability benefits did not terminate on August 26, 1998, under the provisions of §8-42-105(3)(a).
Furthermore, there is no finding or assertion that the claimant has returned to employment, has been medically released to regular employment or has been offered modified employment within the restrictions imposed by the treating physician. Neither is there any evidence which would support the termination of temporary disability benefits on these grounds. Consequently, the ALJ findings of fact support the award of ongoing temporary disability benefits and the award is consistent with the applicable law.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 21, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Robert M. Socolofsky
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed February 23, 2000
to the following parties:
Junior Sharp, 912 28th Ave., #10, Greeley, CO 80631
Delfinia King, Mike Upchurch, Weld County School District #6, 811 15th St., Greeley, CO 80631
Shirin Chowdhury, OHMS, P.O. Box 173682, Denver, CO 80217-3682
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Timothy L. Nemechek, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy