W.C. No. 4-198-516Industrial Claim Appeals Office.
September 17, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which required them to pay temporary total disability benefits commencing January 23, 1995. We affirm.
Section 8-42-105(3), C.R.S. (1995 Cum. Supp.) [amended in 1996], provides that when the insurer admits liability for temporary total disability benefits, they must continue to pay those benefits until the occurrence of one of the events listed in subsection 8-42-105(3)(a)-(d). Under subsection 8-42-105(3)(a), temporary disability benefits terminate when the claimant’s treating physician determines the claimant to be at maximum medical improvement (MMI). Subsection 8-42-105(3)(d) terminates temporary disability benefits when the attending physician releases the claimant to modified work and the claimant fails to begin such modified employment which is offered in writing.
Here, the pertinent facts are undisputed. The respondents admitted liability for temporary total disability benefits in connection with work-related injuries to the claimant’s back and right shoulder. Relying upon Dr. Found’s opinion that the claimant reached MMI on January 24, 1995, the respondents terminated temporary total disability benefits effective January 23, 1995. The claimant objected and requested additional temporary disability benefits.
Following a hearing on November 18, 1996, the ALJ determined that, as of January 23, 1995, the claimant was placed at MMI for the right shoulder but not the back injury. Consequently, the ALJ concluded that Dr. Found’s finding of MMI was insufficient to trigger the termination of temporary disability benefits on January 23, 1995. Therefore, the ALJ ordered the respondents to reinstate temporary disability benefits “commencing January 23, 1995.”
On review the respondents do not dispute the ALJ’s factual determinations concerning MMI. Neither do they contest the ALJ’s order requiring them to reinstate temporary disability benefits effective January 23, 1995. Instead, the respondents contend that, pursuant to a letter dated March 29, 1995, they offered the claimant modified employment within his medical restrictions, and the claimant refused that employment. Under these circumstances, the respondents argue that the claimant’s failure to begin the modified employment terminated the claimant’s entitlement to further temporary total disability benefits.
Moreover, the record contains some evidence that the respondents made an offer of modified employment on March 29, 1997. However, as the respondents point out, the ALJ’s order does not contain any findings of fact concerning this evidence. Therefore, the respondents also contend that the ALJ erroneously failed to “consider” their argument. We perceive no error.
The ALJ’s order awarded the claimant temporary total disability benefits commencing January 23, 1995, and “continuing” as provided by law. However, the ALJ the ALJ did not enter any final order concerning the respondents’ liability for temporary total disability benefits after March 29, 1995. To the contrary the ALJ expressly reserved for future determination “all matters not decided” by the order. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Thus, as we read the ALJ’s order, she reserved the question of whether the claimant’s entitlement to temporary total disability benefits terminated as a result of the claimant’s failure to accept a March 29, 1995 offer of modified employment. Insofar as the respondents’ seek an order concerning their liability for temporary total disability benefits after March 29, 1995, they should file an application for hearing on the issue.
Furthermore, the ALJ’s order is not a final order concerning the respondents’ liability for temporary disability benefits after March 29, 1995. Therefore, the respondents have failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 10, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed September 17, 1997 to the following parties:
Everett E. Young, 24800 Handle Rd., Calhan, CO 80808
Navajo Shippers, Inc., 5300 E. 56th Ave., Commerce City, CO 80022-3827
Brandee DeFalco-Galvin, Esq., Colorado Compensation Insurance Authority — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
BY: _______________________________