W.C. No. 4-413-242Industrial Claim Appeals Office.
January 7, 2000
[1] ORDER OF REMAND
[2] The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ terminated temporary disability benefits March 17, 1999. We set aside the contested portion of the order and remand for the entry of a new order.
[3] On February 1, 1999, the employer hired the claimant to work as a fishing tackle salesperson. The ALJ found the claimant sustained a compensable low back injury on February 22, 1999, while assisting the owner in moving a large shelving unit out of the store. However, the ALJ found the claimant did not report the injury to the employer until February 27, 1999.
[4] On March 10, 1999, the claimant was examined by Dr. Jackier and diagnosed with a work-related acute low back strain. Dr. Jackier prescribed three weeks of physical therapy and medication, and recommended the claimant undergo an MRI. Dr. Jackier also released the claimant to return to work 2 hours a day, with no lifting over ten pounds, no bending and no twisting. However, no modified work was offered to the claimant. Dr. Jackier also directed the claimant to return for further medical care on March 17, 1999. The claimant testified that he did not return to see Dr. Jackier and did not seek treatment from any other provider after the respondents denied liability for the injury because he had no health insurance.
[5] Under these circumstances, the ALJ found the claimant sustained his burden to prove his entitlement to temporary total disability benefits from February 27 through March 17, 1999. However, based on evidence that the claimant did not seek any medical treatment after March 10, the ALJ inferred the claimant’s condition improved to the point that no further treatment was necessary. The ALJ also inferred the claimant was no longer restricted in his work activities, and that the claimant could have returned to his regular duties as of March 17, 1999. Consequently, the ALJ determined the claimant failed to prove that his wage loss between March 17 and June 30, 1999, was due to the industrial injury and therefore, the ALJ denied the claim for temporary disability benefits after March 17, 1999.
[6] On review, the claimant contends the ALJ erred in terminating temporary disability benefits effective March 17, 1999. In particular, the claimant contends the ALJ erroneously shifted the burden of proof by requiring him to prove his entitlement to temporary disability benefits after March 17. Because the ALJ’s findings of fact suggest that he may have misapplied the law, we set aside the contested portion of the order and remand the matter for entry of a new order.
[7] To receive temporary disability benefits, a claimant must prove the industrial injury caused a “disability” and that his post-injury wage loss is “to some degree” the result of the industrial disability. Section 8-42-103(1), C.R.S. 1999; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In the context of § 8-42-103(1), the term “disability” means the physical inability to perform the duties of the claimant’s regular employment. McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995) C.R.S. 1999. Once the claimant has sustained his initial burden of proof, the burden of proof shifts to the respondents to establish grounds to terminate benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
[8] Former § 8-42-105(3)(a)-(d), C.R.S. 1998, [amended in 1999 for injuries which occur on or after July 1, 1999], governs the termination of temporary disability benefits. Under §8-42-105(3), temporary total disability benefits continue until: a) the claimant reaches maximum medical improvement (MMI); b) the claimant returns to regular or modified employment; c) the claimant is released to regular employment by the attending physician; or 4) the claimant refuses to begin a written offer of modified employment within the medical restrictions imposed by the attending physician.
[9] The ALJ found the claimant sustained his initial burden to prove an entitlement to temporary total disability benefits, and that determination is undisputed. Consequently, the ALJ erred under the statute insofar as he required the claimant to establish grounds for the continuation of temporary total disability benefits after March 17.
[10] Furthermore, the ALJ’s findings of fact are insufficient to ascertain whether the respondents established grounds for the termination of benefits. It is undisputed that the claimant has not returned to regular or modified employment. In addition, §8-42-107(8)(b)(I), C.R.S. 1999, provides that the initial determination of MMI must be made by an authorized treating physician. Thus, circumstantial evidence which might support a finding that the claimant does not require further medical treatment is legally insufficient to support the termination of benefits under § 8-42-105(3)(a). See section 8-40-201(11.5), C.R.S. 1999 (MMI exists when the injury is stable and no further treatment is reasonable expected to improve the claimant’s condition).
[11] Moreover, the termination of benefits under § 8-42-105(3)(c) requires proof that the attending physician has given the claimant a release to return to his regular work. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Consequently, in the absence of a medical release from the attending physician which reflects the attending physician’s opinion that the claimant is no longer medically restricted from performing his regular employment duties, lay evidence which might suggest improvement in the claimant’s physical condition does not support the termination of temporary total disability benefits under § 8-42-105(3)(c).
[12] Although the claimant was released with restrictions, there is no finding or evidence that the employer made a written offer of modified employment. (Tr. pp. 17, 70). Thus, evidence of work available within the claimant’s restrictions does not establish grounds for the termination of benefits under § 8-42-105(3)(d). Further, the ALJ’s determination that the claimant’s regular employment falls within the restrictions imposed by Dr. Jackier is not supported by the record or the ALJ’s remaining findings of fact. Even if we assume that the claimant’s duties fell within the restrictions, Dr. Jackier restricted the claimant to working 2 hours a day. The ALJ found the claimant earned $208.93 per week at the rate of $6.00 per hour. (Finding of Fact 1). At the very least, this finding indicates the claimant worked 4 hours a day, assuming a 7-day work week. Furthermore, Mr. Gray testified that he hired the claimant to work approximately 40 hours a week. (Tr. pp. 52, 71).
[13] On remand, the ALJ must determine whether the respondents sustained their burden to prove grounds under § 8-42-105(3) for the termination of temporary total disability benefits effective March 17, 1999. The ALJ shall enter specific findings of fact which articulate the evidence and statutory authority he relied up for his determination. Based upon that determination, the ALJ shall enter a new order concerning the respondents’ liability for temporary disability benefits between March 17, 1999 and June 20, 1999.
[14] In remanding this matter, we recognize that the claimant’s failure to attend an appointment with the treating physician may support the suspension of temporary total disability benefits under § 8-42-105(2)(c), C.R.S. 1999. However, § 8-42-105(2)(c) only applies where the claimant fails to attend a rescheduled appointment. Furthermore, the failure to attend a medical appointment is not one of the grounds listed in § 8-42-105(3) for the termination of temporary disability benefits. Thus, the claimant’s failure to return to Dr. Jackier on March 17, in and of itself, is not grounds for the termination of benefits.
[15] IT IS THEREFORE ORDERED that the ALJ’s order dated July 26, 1999, is set aside insofar as it denies temporary total disability benefits from March 18, 1999 through June 20, 1999, and the matter remanded to the ALJ for the entry of a new order on the issue which is consistent with the views expressed herein.
[16] INDUSTRIAL CLAIM APPEALS PANEL
[17] ___________________________________ Kathy E. Dean
[18] ___________________________________ Dona Halsey
[19] Copies of this decision were mailed January 7, 2000 to the following parties:
[20] Bart Schuldies, 9967 Garland Ln., Westminster, CO 80021
[21] United Sporting Good Wholesale, 2645 S. Santa Fe Dr., Denver, CO 80223-4430
[22] Linda Paulson, Republic Indemnity of America, 5110 N. 40th St., #201, Phoenix, AZ 85018
[23] William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For Claimant)
[24] John H. Sandberg, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
[25] BY: A. Pendroy