W.C. No. 4-224-703Industrial Claim Appeals Office.
January 24, 1997
FINAL ORDER
The respondent filed a Petition for Review of an order issued by Administrative Law Judge Rumler (ALJ) which awarded temporary total disability and medical benefits. We affirm.
In support of the award, the ALJ made the following factual determinations. The claimant sustained two compensable injuries during his employment for the respondent. Both injuries are the subject of this claim. The first injury occurred on May 25, 1994, while the claimant was washing a city truck at the direction of his supervisor. While attempting to climb into the truck, the claimant slipped and injured his left foot. The respondent referred the claimant to Dr. Dietz for treatment. Later, Dr. Dietz referred the claimant to Dr. Kem, who diagnosed Plantar Fasciitis.
Due to the left foot injury, the claimant was unable to put full weight on his left leg. Consequently, the claimant altered his gait and changed the way he performed the heavy lifting requirements of his job. As a result, the claimant developed back pain which he reported to one of his supervisors, Tony Rios, on July 21, 1994 and July 25, 1994. The claimant also sought further treatment from Dr. Dietz. However, Dr. Dietz refused to treat the claimant’s back pain because he did not believe the pain was related to the May 24 injury. Instead, Dr. Dietz directed the claimant to seek treatment from his personal physician, Dr. Molden.
On July 26, 1994, the claimant suffered a compensable back injury while moving a case of supplies at work. The claimant reported the injury to his supervisor and sought treatment from Dr. Molden.
Based upon these findings the ALJ determined that the respondent had adequate notice of the claimant’s back injury, and failed in the first instance to select a physician to treat the injury. Furthermore, the ALJ found that Dr. Dietz refused to treat the injury for non-medical reasons. Therefore, the ALJ determined that the right of selection passed to the claimant, who chose to treat with Dr. Molden. However, Dr. Molden indicated that if the back injury was found to be compensable under the Workers’ Compensation Act, the claimant would need to get a different physician. Consequently, the ALJ allowed the claimant to select Dr. Collitan as his authorized treating physician, and ordered the respondents to pay for all authorized medical treatment reasonably necessary to cure and relieve the effects of the industrial injuries.
In addition, the ALJ found that the injuries rendered the claimant temporarily totally disabled from July 27, 1994 through September 19, 1994, and November 28, 1994 though July 10, 1995. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits for these periods.
The respondent’s Petition for Review contains general allegations of error. See § 8-43-301(8), C.R.S. (1996 Cum. Supp.). The respondent also alleges that the ALJ “erred in finding and concluding that the Claimant’s injury is compensable.” However, the respondent did not file a brief in support of its Petition. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Contrary to the respondent’s contention, there is substantial evidence in the record to support the ALJ’s findings of fact. In particular, the claimant’s testimony, which the ALJ found credible, as well as the August 10, 1994 medical report of Dr. Molden, and the reports of Dr. Kem, amply support the ALJ’s findings that the claimant’s left foot and back injuries arose out of and in the course of his employment. The finding is also buttressed by the testimony of the respondent’s witness, Tony Rios. Therefore, we must uphold the ALJ’s determination that the claimant suffered two compensable injuries. Section 8-43-301(8) General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994 ).
Moreover, the ALJ’s findings support a conclusion that the claimant is entitled to an award of temporary total disability and medical benefits, and this conclusion is consistent with the applicable law. See § 8-43-404(5)(a) § 8-42-105(1), C.R.S. (1996 Cum. Supp.); Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987) (where physician refuses to treat for nonmedical reasons the employer is required to appoint a new treating physician or the right of selection passes to the claimant) Ruybal v. University Health Sciences Center, 768 P.2d 1259
(Colo.App. 1988) (claimant may make another selection where physician selected refuses to treat for non-medical reasons). Therefore, we may not disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed January 24, 1997 to the following parties:
Manuel Valdez, 4814 Perry St., Denver, CO 80212
City and County of Denver, 1445 Cleveland Pl., Annex 1, #200, Denver, CO 80202
Sanda L. King, Esq., 950 S. Cherry St., #1400, Denver, CO 80222 (For the Claimant)
Olivia L. Hudson Smith, Esq., City County of Denver, 1445 Cleveland Pl., Ste 202, Denver, CO 80202 (For the Respondent)
BY: _______________________