Opinion
W.C. No. 4-497-740.
June 16, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which terminated temporary partial disability (TPD) benefits pursuant to § 8-42-106(2)(b)(1), C.R.S. 2002 (failure to begin modified employment approved by attending physician after receipt of written offer). We affirm.
The ALJ found the claimant, a truck driver, suffered a compensable back injury on April 22, 2001. The treating physician intermittently imposed physical restrictions which prohibited the claimant from performing his usual duties. Between June 13, 2001, and September 6, 2001, the employer provided part-time office work (6 to 8 hours per week), and it is undisputed the claimant is entitled to TPD benefits for this period of time.
On August 30, 2001, the employer mailed a certified letter to the claimant offering "full-time/part-time" employment commencing September 6, 2001. The written offer listed four types of duties, two of which involved office work and two of which involved operation of a vehicle. The claimant's treating physician approved all four jobs as within the claimant's restrictions provided he did not exert greater than forty pounds of pressure when opening trailer doors.
The claimant did not report to work on September 6, nor did he contact the employer. At the hearing, the claimant testified he did not report for work because he was taking narcotic medication to treat his injury and couldn't legally drive a vehicle. However, the ALJ credited the employer's testimony that even if the claimant could not operate a vehicle the employer would have provided six to eight hours of office work per day.
Under these circumstances, the ALJ terminated the claimant's TPD benefits effective September 6, 2001. The ALJ ruled the written offer of modified employment complied with Rule of Procedure IX (C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34, and § 8-42-106(2)(b)(1). The ALJ further found that even if the claimant's use of medications precluded him from driving, the employer had office work available which the claimant could have performed.
The claimant filed a timely petition to review the ALJ's order. The petition contains general allegations of error concerning the sufficiency of the findings and the application of the law to the facts. Despite the granting of an extension of time, claimant's current attorney failed to file a brief in support of the petition to review. Consequently, the effectiveness of our review is very limited.
Section 8-42-106(2)(b)(1) provides for the termination of TPD benefits when the attending physician "gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment." Where the attending physician approves a release to modified employment, the ALJ is bound by the attending physician's determination that the claimant is physically able to perform the modified work. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (interpreting § 8-42-105(3)(c) when attending physician releases claimant to regular employment); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995) (same principle); Luna v. Aerotek Inc., W.C. No. 4-416-146 (September 18, 2000) (applying § 8-42-105(3)(d) where claimant failed to begin modified employment approved by attending physician).
Here, substantial evidence supports the ALJ's finding that the attending physician expressly approved the modified work which the employer offered to the claimant. Consequently, we must uphold the ALJ's determination that the claimant's right to receive TPD benefits was terminated by operation of § 8-42-106(2)(b)(1). Section 8-43-301(8), C.R.S. 2002; Burns v. Robinson Dairy Inc., supra.
We have held, in the context of § 8-42-105(3)(d), that modified employment offered to the claimant must be reasonably available to the claimant under an objective standard. Hence, we upheld a determination that benefits could not be terminated under the statute where the claimant was offered work within his restrictions, but could not drive to work because he was taking medication and the employer provided no transportation. Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998).
However, in this case, there was no dispute concerning the claimant's ability to get to work. Further, even if legal considerations prevented the claimant from performing work as a driver, office work was still objectively available to the claimant. Thus, we perceive no error in the ALJ's application of the statute.
IT IS THEREFORE ORDERED that the ALJ's order dated May 30, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 16, 2003 to the following parties:
Lance D. Lintt, P. O. Box 136, Evans, CO 80620
Mike Willits, Willies Grain, Inc., P. O. Box 100, 18302 Highway 392, Lucerne, CO 80646
Legal Department, Pinnacol Assurance — Interagency Mail
Richard K. Blundell, Esq., 1020 9th St., Greeley, CO 80631 (For Claimant)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
By: A. Hurtado