W.C. No. 4-220-145Industrial Claim Appeals Office.
August 15, 1996
FINAL ORDER
This matter has been transmitted to us for review of a Supplemental Order of Administrative Law Judge Snider (ALJ). We affirm.
In an order dated June 20, 1995, the ALJ found that the claimant suffered a compensable injury which was subsequently diagnosed as aerotitis. The order required the respondent to provide temporary total disability for the period December 28, 1992 to February 10, 1993, and pay for treatment of the aerotitis. In so doing, the ALJ specifically determined that Dr. Jones’ treatment was authorized. However, the ALJ denied the claimant’s motion that penalties be assessed in connection with the respondent’s untimely denial of liability. The ALJ subsequently issued his Supplemental Order which explained his reasoning in denying the request for penalties, and incorporated the June 20 award.
The parties separately petitioned for review of the June 20 order. The claimant contested the ALJ’s failure to impose penalties, and the respondent contested the award of temporary disability benefits. However, the claimant subsequently filed a “Motion to Dismiss” her appeal. Because we grant the claimant’s Motion, we are left to consider the respondent’s request for review.
The respondent contends that the ALJ erred in awarding temporary total disability benefits after December 28, 1992, the date Dr. Jones released the claimant to return to regular employment. We disagree.
As argued by the respondent, the claim is governed by the statutory language currently codified at § 8-42-105(3), C.R.S. (1995 Cum. Supp.). Subsection 8-42-105(3)(c) provides that temporary total disability benefits terminate when the “attending physician gives the employee a written release to return to regular employment.” McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Furthermore, the respondent correctly asserts that the opinion of the “attending physician” is conclusive as to the claimant’s ability to perform regular employment. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995) cert. denied March 4, 1996. Consequently, the ALJ is not free to disregard the opinion of the attending physician that the claimant is physically capable of performing regular employment.
However, we have previously recognized that a claimant may have more than one “attending physician” for purposes of §8-42-105(3)(c). When that situation arises, and there is a conflict between the attending physicians concerning the claimant’s ability to perform regular employment, the ALJ may resolve the conflict as a matter of fact. Burns v. Robinson Dairy, Inc., supra. We are bound by the ALJ’s determination in this regard if it is supported by substantial evidence in the record and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Here, the claimant testified that pursuant to the respondent’s “standard procedure,” she first sought treatment for the industrial injury on December 9, 1992, at the United Airlines Medical Center (Medical Center). (Tr. pp. 18, 19). On that date, the Medical Center reported that the claimant was “unable to work.” The claimant testified, and the respondent concedes that the Medical Center then instructed the claimant to see her personal physician, Dr. Jones. (Tr. p. 21). According to the claimant, she was thereafter treated by both the Medical Center and Dr. Jones. However, only Dr. Jones released her to return to flying on December 28, 1992. (Tr. pp. 22, 47, 47, 55).
Although not a model of clarity, the ALJ’s findings reflect an implicit determination that the claimant had multiple attending physicians for the industrial injury. See
Findings of Fact 6, 10. Furthermore, as we read the ALJ’s order, he resolved the conflict between the Medical Center and Dr. Jones concerning the claimant’s ability to perform regular employment against the respondent. The ALJ found that commencing February 11, 1993, the claimant began losing time from work due to surgery for an unrelated condition. However, the ALJ found that the “Respondent’s medical office” had not released the claimant to return to work prior to February 11, 1993. Finding of Fact 10.
The December 1992 through February 1993 medical reports of the Medical Center support the ALJ’s finding that the Medical Center did not release the claimant to work between December 9, 1992 and February 11, 1993. Therefore, we may not disturb the ALJ’s award of disability benefits for the period December 28, 1992 to February 10, 1993.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated April 5, 1996, is affirmed.
IT IS FURTHER ORDERED that the claimant’s Motion to Dismiss her Petition for Review is granted.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon 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. (1995 Cum.Supp.).
Copies of this decision were mailed August 15, 1996 to the following parties:
Roberta Cressman, 907 S. Corona St., Denver, CO 80209
United Air Lines, Inc., P.O. Box 66100, Chicago, IL 60666-0100
United Air Lines, Inc., % Alexsis, Inc., 1099 18th St., Ste. 3050, Denver, CO 80202-1930
William J. Macdonald, Esq., 1290 Broadway, Ste. 807, Denver, CO 80203 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: _______________________