W.C. No. 4-777-705.Industrial Claim Appeals Office.
May 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated December 4, 2009, that awarded certain temporary total disability (TTD) benefits and denied other TTD benefits. We affirm.
The claimant suffered an industrial injury to his right elbow on November 19, 2008. The claimant continued to work modified duty. The attending physician gave the claimant a written release to return to regular employment with no restrictions on March 16, 2009. The attending physician also found that the claimant had reached maximum medical improvement (MMI) on that date. On September 8, 2009 the claimant returned to the attending physician who stated he no longer considered the claimant to be at MMI and the physician assigned work restrictions. The ALJ found that subsequent to being released to return to work at regular duty and placement at MMI by the attending physician the claimant’s condition had worsened as reflected by the return of pain and symptoms causing the attending physician to re-instate physical restrictions.
The ALJ, citing § 8-42-105(3)(c) C.R.S., determined that the release to return to work by the attending physician was binding on him and that the claimant was not entitled to TTD benefits so long as he continued to be released to work at his regular job. The ALJ awarded TTD benefits beginning September 9, 2009 until terminated by law. The ALJ denied the claimant’s request for TTD benefits from March 16, 2009 through September 8, 2009. The claimant appeals.
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I.
On appeal the claimant first contends the ALJ erred in denying the request for TTD benefits beginning March 16, 2009 because the attending physician made a mistake in placing the claimant at MMI on March 16, 2009 with no work restrictions. In support of this contention the claimant offers a new letter from the attending physician dated December 21, 2009. In that letter the attending physician states that the claimant should never have been placed at MMI on March 16, 2009 and he should still have had work restrictions at that time. Exhibit 1.
However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant’s representations and attachments to his brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). Therefore, we may not consider the effect of the medical record submitted by the claimant.
II.
The claimant next contends that if it is determined that the attending physician did not make a mistake then the claimant is entitled to TTD benefits beginning March 16, 2009 because his condition worsened. The claimant, citing § 8-43-303(1) C.R.S., argues that any award may be reopened on the ground of error, mistake or a change in condition.
However, the issue of reopening the claim was not before the ALJ. Because this argument was not before the ALJ it is not available for our review. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). We refuse to consider the factual assertions raised by the claimant for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo. App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 4, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant
TODD L MASON,, COLORADO SPRINGS, CO, (Claimant).
RIAL HEATING AIR CONDITIONING, INC., COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: MATTHEW GIZZI, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON, PC, Attn: DAWN M YAGER, ESQ., DENVER, CO, (For Respondents).
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