IN THE MATTER OF THE CLAIM OF GARY BEGORDIS, Claimant, v. CATERPILLAR SERVICES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-780-377.Industrial Claim Appeals Office.
August 24, 2010.

ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated April 26, 2010, that found the claimant suffered a compensable back injury and awarded temporary total disability (TTD) benefits. We set aside the order and remand for further proceedings.

The ALJ determined that the claimant suffered a compensable back injury on October 28, 2008. The ALJ found that the claimant’s employment activities on October 28, 2008 aggravated, accelerated, or combined with his pre-existing back condition to produce a need for medical treatment. The ALJ further found that the claimant was entitled to temporary total disability benefits (TTD) for the period November 9, 2008 through March 20, 2009. The ALJ terminated the entitlement to TTD as of March 20, 2009 based on a release to regular employment from Dr. Fox.

The respondents bring this appeal contending the ALJ erred in awarding TTD benefits. The respondents argue that Dr. Fox, an attending physician, placed the claimant at MMI on November 6, 2008. The respondents, citing Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995), contend the ALJ committed error when he awarded the claimant temporary benefits for a period after the claimant was placed at MMI by his attending physician, in disregard of § 8-42-105(3)(a) C.R.S.

The claimant concedes that under Story v. Industrial Claim Appeals Office, if Dr. Fox had expressed only one opinion regarding MMI then the ALJ would be without jurisdiction to award TTD benefits beyond that date. However, the claimant argues that

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Dr. Fox, after first stating that the claimant had achieved MMI had on several occasions, stated that the claimant was not at MMI. The claimant, citing Blue Mesa Forest v. Lopez 928 P.2d 831 (Colo. App. 1996) argues that when the attending physician issues conflicting opinions concerning MMI, it is for the ALJ to resolve the conflict, and the ALJ may do so without requiring the claimant to obtain a DIME.

It is well established that § 8-42-105(3)(a), C.R.S., permits termination of temporary disability benefits when the claimant reaches MMI. Ziel v. Eastman Kodak Company, W. C. No. 4-313-166 (June 12, 1998). A finding of MMI by the attending physician is binding unless overcome under the independent medical examination procedure established by § 8-42-107(8)(b). Story v. Industrial Claim Appeals Office, supra. The claimant did not follow the Division-sponsored independent medical examination procedure. However the ALJ retains fact-finding authority to resolve conflicts concerning MMI if the attending physician expresses conflicting or ambiguous opinions concerning whether or not the claimant has reached MMI. Blue Mesa Forest v. Lopez, supra.

Here, it is undisputed by the claimant that Dr. Fox placed the claimant at MMI on November 6, 2008 as argued by the respondents. However, the record also contains later reports from Dr. Fox in which he opines that the claimant was not at MMI.

We disagree with the claimant’s argument that the ALJ implicitly resolved the issue of the attending physician’s conflicting statements concerning MMI by ordering TTD to continue until the claimant was placed at full duty. We note that the ALJ did not make any specific finding of fact concerning conflicts in the views Dr. Fox expressed concerning MMI. We further note that the claimant does not appear to have made this argument before the ALJ. Therefore, we reject the claimant’s argument that the ALJ resolved that conflict between the expressed opinions of Dr. Fox on whether the claimant was at MMI.

We cannot serve as finders of fact, but must defer to the ALJ. Section 8-43-301(8), C.R.S. In the absence of findings concerning conflicts in the statements made by the attending physician the case must be remanded for consideration of that issue. In our view, the ALJ failed to resolve conflicts in the evidence and we reject the claimant’s argument that the ALJ implicitly resolved the conflict in statements made by the attending physician. Therefore, it is necessary to remand the matter to the ALJ for the entry of additional findings concerning the claimant’s entitlement to TTD based on resolution of the authorized treating physician’s conflicting opinions concerning MMI.

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IT IS THEREFORE ORDERED that the ALJ’s order dated April 26, 2010 is set aside. The matter is remanded for entry of a new order on the issue of resolving conflicting or ambiguous opinions expressed by the attending physician concerning whether or not the claimant had reached MMI.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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GARY BEGORDIS, ENGLEW00D, CO, (Claimant).

CATERPILLAR SERVICES, Attn: BRIAN SCHNAUBER, DENVER, CO, (Employer).

LIBERTY MUTUAL INSURANCE COMPANY, Attn: MARGARET RODRIGUEZ, IRVING, TX, (Insurer).

THE ELEY LAW FIRM, Attn: CLIFFORD E. ELEY, ESQ., DENVER, CO, (For Claimant).

LAW OFFICES OF RICHARD MYERS, Attn: DAVID G. KROLL, ESQ./APRIL D. MOORE, ESQ., DENVER, CO, (For Respondents).

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