IN THE MATTER OF THE CLAIM OF NICOLE ESKRIDGE, Claimant, v. BROOKDALE SENIOR LIVING, INC., Employer, and AMERICAN HOME ASSURANCE, Insurer, Respondents.

W.C. No. 4-651-260.Industrial Claim Appeals Office.
May 27, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated December 15, 2009, that awarded temporary total disability (TTD) benefits. We affirm.

The claimant suffered an industrial injury to her back on April 12, 2005. The claimant was placed at maximum medical improvement (MMI) and her claim was closed by a Final Admission of Liability dated July 17, 2006. However, the claimant’s condition worsened. The claimant’s family physician in a letter dated September 28, 2009 stated that the claimant was unable to work due to constant medication use necessitated by her severe back pain and need for surgery. The family physician stated that the claimant was unable to work from July 28, 2009 until an anticipated return to work date after her surgery. The respondents voluntarily reopened the claim by an admission dated September 16, 2009.

The dispute before the ALJ was the claimant’s entitlement to TTD benefits for the period of time from July 28, 2009 to August 19, 2009, the date the respondents voluntarily reopened the claim and began payments of TTD benefits. The ALJ credited the testimony of the claimant that she was incapable of working due to the worsening of her back commencing on July 28, 2009. The ALJ also credited the opinion of her family physician that the claimant was incapable of working as of July 28, 2009. The ALJ awarded the disputed TTD benefits from July 28, 2009 through August 18, 2009.

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On appeal, the respondents argue that the ALJ erred in relying on the claimant’s testimony and report of the family physician in awarding TTD benefits. The respondents citing Burns v. Robinson Dairy, 911 P.2d 661 (Colo. App. 1995) argue that here the attending physician had provided the claimant with a written release to work and therefore the ALJ was bound to terminate TTD benefits pursuant to § 8-42-105(3)(c) C.R.S.

The respondents contend that Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997) is distinguishable. I Lymburn a claimant’s testimony and the opinion of her personal physician were found to be sufficient to support initial entitlement to receive TTD benefits; the opinion of attending physician was not required. The respondents note that Lymburn v. Symbios Logic
dealt with the “initial entitlement” to receive TTD benefits and here the claimant’s entitlement was terminated pursuant to 8-42-105(3)(c) based on a report from the attending physician.

We acknowledge that § 8-42-105(3)(c) mandates termination of TTD benefits if the attending physician gives the employee a written release to return to regular employment, and the courts have determined that an ALJ may not disregard the opinion of the physician on this issue. Burns v. Robinson Dairy, supra; Imperial Headware, Inc. v. Industrial Claim Appeals Office 15 P.3d 295 (Colo. App. 2000).

However, in our view, the award of TTD benefits here, after the case had been reopened, did not constitute a collateral attack on the attending physician’s opinion expressed in 2006 that the claimant was then able to perform regular employment, which resulted in the closure of the case. See Vigil v. Pioneer Healthcare, W.C. No. 4-779-599 (March 24, 2010). Rather, the ALJ’s determination is consistent with Berg v. Industrial Claim Appeals Office 128 P.3d 270 (Colo. App. 2005). In Berg, the Colorado Court of Appeals determined that an uncontested finding of MMI by division-sponsored independent medical examination (DIME) physician could be reopened based on mistake of fact. In Berg, the court noted that because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination of MMI. In our view, the same logic applies to a collateral attack on an opinion of an attending physician on the claimant’s release to return to work. Therefore, the issue on review is whether the ALJ’s order may be disturbed based upon the law applicable to the initial establishment of the claimant’s right to TTD benefits. See Vigil v. Pioneer Healthcare supra Rivera v. Ames Construction, W.C. No. 4-421-438 (August 25, 2000). affd. St. Paul Marine Insurance and Ames Construction v. Industrial Claim Appeals Office No. 00CA1664 (Colo. App. January 18, 2001 (not selected for publication). We concluded that there is no need to interfere with the ALJ’s order.

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To prove entitlement to TTD the claimant must prove the industrial injury caused a “disability.” Section 8-42-103(1), C.R.S; PDM Molding, Inc. v. Sternberg, 898 P.2d 542 (Colo. 1995). The term “disability,” as used in workers’ compensation cases, connotes two elements. The first is “medical incapacity” evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant’s inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of “disability” may be evidenced by showing a complete inability to work, or by physical restrictions, which impair the claimant’s ability effectively to perform the duties of his or her regular job. Se Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App. 1998).

Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, supra. We must uphold the ALJ’s determination if it is supported by substantial evidence. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

Here the ALJ found that because of the worsening of the claimant’s industrial injury she was unable to work from July 28, 2009 until she returned to work on September 21, 2009. In our view, the testimony of the claimant and the medical report from the claimant’s physician constitute substantial evidence in the record supporting the ALJ’s determination.

IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________ Curt Knksciun

_______________________ Thomas Schrant

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NICOLE ESKRIDGE, FT COLLINS, CO, (Claimant).

BROOKDALE SENIOR LIVING, INC., FT COLLINS, CO, (Employer).

AMERICAN HOME ASSURANCE, Attn: JEAN DOWNING, C/O: GALLAGHER BASSET SERVICES, ENGLEWOOD, CO, (Insurer).

LAW OFFICES OF MATT BUSCH, Attn: W MATT BUSCH, JR., ESQ., LOVELAND, CO, (For Claimant).

TREECE ALFREY MUSAT BOSWORTH, PC, Attn: JAMES B FAIRBANKS, ESQ., DENVER, CO, (For Respondents).

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