W.C. No. 4-599-177.Industrial Claim Appeals Office.
April 20, 2006.
ORDER
The respondents seek review of an order of Administrative Law Judge (ALJ) Martin D. Stuber, which determined that the claimant is entitled to ongoing temporary total disability (TTD) benefits. Because we conclude that the ALJ’s factual findings are insufficient to permit appellate review, we set aside the order and remand for further findings.
The parties went to hearing for a determination as to whether the claimant was entitled to TTD benefits. The respondents took the position that the claimant was responsible for his termination from employment on December 18, 2003 and, therefore, not entitled to ongoing TTD benefits. As alternative positions, the respondents asserted the claimant was released by an authorized medical provider to full duties on June 22, 2004, and reached medical maximum improvement (MMI) on October 28, 2004. Tr. at 5.
The ALJ determined that the claimant was neither responsible for the loss of his job nor determined to be at MMI. Concerning the respondent’s remaining contention that the claimant was released to full duties, the ALJ determined that the record contained conflicting opinions on that issue by multiple attending physicians, and concluded that the claimant was not released to regular employment. The ALJ therefore ordered that TTD benefits continue.
The ALJ made several findings of fact pertaining to the claimant’s ability to return to work. The claimant returned to modified duties pursuant to restrictions imposed by Dr. Bradley. Dr. Bradley later increased the claimant’s work restrictions, but then reduced the restrictions. Although the claimant had returned to modified duty prior to December 12, 2003, Dr. Waldman took the claimant off work December 12, 2003 to December 16, 2003, after which he was again released to work with restrictions. During this time period, a personal physician excused the claimant from work entirely and Dr. Bradley continued the claimant’s release to work, but with restrictions. Later, in June 2004, Dr. Bradley removed restrictions. Several months later, in October, Dr. Shriver returned the claimant to regular duties. Findings of Fact, Conclusions of Law, and Order, at 2-4, ¶¶ 3-7, 9, 12-14, 18-19. The ALJ also found a conflict between Dr. Shriver’s release to regular employment and the claimant’s treatment history. The ALJ credited Dr. Bradley’s work restrictions as more persuasive than a full-duty release to return to work. Findings of Fact, Conclusions of Law, and Order, at 4-6, ¶¶ 25, 4.
On appeal, the respondents assert it is undisputed that the claimant was released to regular employment by an attending physician on June 22, 2004, thereby compelling the termination of TTD benefits as of that date. In support of their position, the respondents urge that any previous work restrictions imposed by the same attending physician be disregarded, as well as a subsequent, full-duty release by another physician. The respondents argue that the subsequent release was based on a determination that the claimant was at MMI and should, therefore, be disregarded as immaterial to whether the claimant was released for regular work on June 22, 2004. We conclude that additional findings are necessary. See § 8-43-301(8), C.R.S. 2005 (Panel may remand when findings of fact insufficient for appellate review). See also, Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991) (factual findings sufficient if identify evidence ALJ deemed persuasive and determinative of issues).
Section 8-42-105(3)(c), C.R.S. 2005, provides the claimant’s right to temporary total disability benefits ceases when the “attending physician gives the employee a written release to return to regular employment.” This issue is distinct from and must be considered separately from the question of whether the claimant has reached MMI. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). In order for a release to regular employment to be effective, it must be physically delivered to the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Further, if multiple authorized treating physicians offer conflicting opinions concerning the claimant’s ability to perform regular employment, or a single authorized treating physician issues conflicting or ambiguous opinions, the ALJ may resolve the issue as a matter of fact Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here, the record indicates the claimant had multiple treating physicians, but both Dr. Bradley and Dr. Shriver opined that the claimant could return to regular employment. It is therefore not clear what findings support the ALJ’s conclusion that multiple attending physicians rendered conflicting opinions. See
Findings of Fact, Conclusions of Law, and Order, at 5, ¶ 4. Furthermore, we cannot discern from the ALJ’s decision what weight, if any, he gave to Dr. Bradley’s June 22, 2004 release to regular duties. It is apparent from the ALJ’s order that he credited Dr. Bradley’s work restrictions, but not Dr. Bradley’s June 2004 release to work, in determining whether, in fact, the claimant was released to return to regular employment. It could be, as the claimant implies, that the ALJ found Dr. Bradley’s June report ambiguous or in conflict with other reports from other authorized treating physicians or other reports from Dr. Bradley himself, and so not persuasive . See Findings of Fact, Conclusions of Law, and Order, at 3-5, ¶¶ 19, 25, 4. However, that is for the ALJ to determine. Since this issue is factual in nature, it is the ALJ’s responsibility to determine the weight and credibility of the testimony, as well as the inferences to be drawn from the evidence. We may not substitute our judgment for his concerning these matters. Metro Moving Storage Co. v. Gussert, supra; § 8-43-301(8), C.R.S. 1997. See also, Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ’s responsibility to assess weight and credibility of expert medical opinion). In addition, the ALJ found that the claimant was subject to restrictions until, at least, June 22, 2004. Findings of Fact, Conclusions of Law, and Order, at 4, ¶ 25. However, the ALJ does not explain whether he found that the claimant continued to be under medical restrictions after that date, whether the claimant had been released to return to regular employment, and what effect that has considering the provisions of § 8-42-105(3)(c), C.R.S. 2005.
Therefore, on remand the ALJ must enter findings of fact concerning provisions of § 8-42-105(3)(c), and the effect of Dr. Bradley’s release of the claimant to regular duties on June 22, 2004.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 14, 2005, is set aside and remanded for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ John D. Baird
________________________________ Thomas Schrant
Robert Childers, Pueblo, CO, Pueblo Truss Company, Pueblo, CO, Deanna Cuerden, Sierra Insurance Group, c/o GAB Robins, P., Denver, CO, Barkley D. Heuser, Esq., Springs, CO, (For Claimant).
John H. Sandberg, Esq., Lakewood, CO, (For Respondents).