IN THE MATTER OF THE CLAIM OF ELAINE LOOFBOURROW, Claimant, v. HARMAN-BERGSTEDT, INC. DBA KENTUCKY FRIED CHICKEN, Employer, and ZURICH AMERICAN INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-804-458.Industrial Claim Appeals Office.
October 7, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated April 6, 2010, that found the claim compensable, awarded temporary total disability (TTD) benefits and found that the right of selection of the authorized treating physician had passed to the claimant. We set aside the ALJ’s award of TTD benefits, but otherwise affirm the order.

The ALJ found that the claimant was injured through cumulative trauma, specifically, lifting and cooking chicken while working at the employer’s store on November 8, 2008. The claimant was the manager of the store and on the day in question the claimant’s workers walked off the job and she was required to operate the store by herself until support arrived at 4:00 p.m. The claimant testified that she had to lift baskets of chicken that weighed 45 to 50 pounds. The ALJ found that the claimant exaggerated the weight of the baskets of chicken which actually weighed between 11.7 and 16.2 pounds. The ALJ further found, based on the store’s computer statistics that the claimant exaggerated the amount of chicken she cooked on the day in question. Nonetheless the ALJ found this did not detract from her credibility and the removing of the chicken from the bags, coupled with the claimant’s stress by virtue of employees leaving the job, was sufficient to aggravate her underlying low back condition.

The ALJ found that the claimant had proven by a preponderance of the evidence that it was more likely than not that she sustained a work-related injury to her low back and/or aggravated an underlying pre-existing low back condition on November 8, 2008.

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The ALJ further determined that there had been a refusal to treat for non-medical reasons, and the right of selection of an ATP passed to the claimant. The claimant selected Dr. Engelstad, who has become the claimant’s ATP since September 21, 2009. The ALJ determined the claimant’s average weekly wage (AWW) was $844.65. The ALJ found that the claimant was entitled to TTD benefits from August 24, 2009 and continuing.

I.
The respondents contend the ALJ erred in determining that the claimant sustained a low back injury on November 8, 2008 that arose out of and in the course of her employment with the employer. The respondents maintain that the incident of November 8, 2008 was no more than a manifestation of her pre-existing condition. The respondents argue that her pre-existing condition simply became symptomatic while she was working.

To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that her condition arose out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

Specifically the respondents direct our attention to the ALJ’s determinations regarding the opinions of Dr. Scott. The ALJ concluded that Dr. Scott essentially did not render an opinion on causal relatedness. In reaching this conclusion the ALJ noted the following from the evidentiary deposition of Dr. Scott:

Q. [by Claimant’s counsel] Is it still your opinion that my client did suffer at least a temporary exacerbation on November 8th of a preexisting condition. . . .
A. It would be my opinion that I really can’t answer that because I wasn’t the treating physician and I wasn’t there to treat her on November 8th, 2008 . . .

Scott Depo. at 33-34.

From this the ALJ concluded that Dr. Scott rendered a “non-opinion” that did not contradict the opinions of the claimant’s treating physicians. As pointed out by the

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respondents the ALJ selected only portions of the question and answer. The entire question and answer read together certainly can be viewed as the doctor merely again reaffirming his earlier expressed opinions that the claimant’s job activities had not caused an aggravation of her underlying condition. Scott Depo. at 9-12, 17-18, 20, 25-26. The respondents argue that the finding that Dr. Scott rendered a “non-opinion” is not supported by the evidence.

Though the question is a close one, we conclude that the evidence sufficiently supports an inference that Dr. Scott waivered in his opinion on whether there was a temporary aggravation of the claimant’s underlying condition on November 8, 2008. The court of appeals has noted that in this context the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).

Moreover, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, as noted by the ALJ here, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). Although not cited by the ALJ, we also note that Dr. Scott in his report opined that it was not probable that the claimant had an occupational spinal disease and “her acute work related injury, i.e., lumbar strain, resolved by December 9, 2008.” Exhibit D at 5. This statement could reasonably be viewed as evidence that Dr. Scott considered the incident of November 8, 2008 as a temporary aggravation. Therefore, we are not persuaded to interfere with the ALJ’s determination.

II.
The respondents next contend that even if the claim is compensable the ALJ erred in determining that the claimant’s symptoms in 2009 were part of the November 8, 2008 injury. We are not persuaded to interfere with the ALJ’s order in this regard.

Proof of causation is a threshold issue, which the claimant must establish by a preponderance of the evidence. Section 8-43-201, C.R.S.; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant has proven a causal relationship between the employment and the alleged injury or disease is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). Because the issue is factual in nature, we must again uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8).

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The respondents argue that the claimant admitted that she had fully recovered from the November 8, 2008 back problem by December 9, 2008 when Dr. Schaut placed her at maximum medical improvement (MMI) with no permanent medical impairment. The respondents contend that there are no medical opinions that cooking chicken on November 8, 2008 led to more significant back symptoms in August, 2009. The respondents argue that the ALJ cited no medical opinions whatsoever that relate the claimant’s back condition in 2009 to the event that occurred in November 2008.

The claimant responds arguing that the ALJ determined that the claimant established by a preponderance of the evidence that her compensable injury of November 8, 2008, worsened after placement at MMI in 2008. The claimant contends that she sought to reopen based on a change of condition. The claimant does not direct us to any specific medical opinions on the issue raised by the respondent, but argues that there were additional medical restrictions in 2009 and that the claimant’s testimony was credible.

However, the claimant is not required to present medical evidence to prove a worsened condition. Savio House v. Dennis, 665 P.d. 141 (Colo. App. 1983). Rather the claimant’s testimony, if credited, may be sufficient to establish a worsened condition Cf. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997) Marsak v. Best Western Durango Inn, W. C. No. 4-416-242 (May 13, 2004).

We take note that the respondents in another section of their brief contend that the claimant did not pursue and in fact withdrew her petition to reopen. As evidence of this withdrawal the respondents point to an area of the transcript where it appears the ALJ inadvertently forgot to record the parties’ statement of the issues at the inception of the hearing. Tr. (1/20/2010) at 9-10. We further note that the ALJ in his order did not list petition to reopen in his statement of the issues nor did the claimant argue the petition to reopen in his opening brief. However, petition to reopen was listed as an issue in the claimant’s application for hearing, The claimant, rather than conceding that her petition to reopen was withdrawn, has argued in her brief before us that the ALJ’s order regarding a petition to reopen is supported by substantial evidence.

In the absence of any evidence to the contrary, we must presume the ALJ acted regularly in addressing the alleged worsening of condition. See Wildwood Child and Adult Care Program, Inc., v. Department of Public Health and Environment, 985 P.2d 654, 655 (Colo. App. 1999) (administrative proceedings accorded a presumption of regularity and party challenging action carries burden to establish impropriety); Moon v. King Soopers, Inc., W.C. No. 4-206-668 (November 22, 1999); Ashton-Moore V. Nextel Communications, Inc., W. C. No. 4-431-951 (September 12, 2002). Although this is a troubling situation we have no means of reviewing the contention that the petition to

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reopen was withdrawn. See Hanna v. Print Expediters Inc. 77
P.3d 863 (Colo. App. 2003) (burden is on appellant to provide record justifying reversal, and absent such a record, we presume the regularity of the trial court proceedings).

In our view there is substantial evidence to support the ALJ’s determination that the claimant’s condition worsened after 2008 and that the claimant’s symptoms in 2009 were casually related to the November 8, 2008 injury. Therefore we are bound by such determination. Section 8-43-301 (8).

However, we do not construe the ALJ’s decision as granting a petition to reopen and note that the ALJ did not indicate anywhere in his decision that he was ruling on the claimant’s petition to reopen. Furthermore, we do not understand the claimant to have argued that the ALJ should reopen the determination of MMI based on a worsening of her condition and a contention that she was no longer at MMI. See, e.g., Richards v. Industrial Claim Appeals Office, 996 P.2d 756 (Colo. App. 2000) (ALJ considered, but rejected, reopening based on allegations that claimant’s condition worsened and was no longer at MMI).

III.
The respondents next contend that even if the claimant sustained a compensable back injury on November 8, 2008, the ALJ erred in determining that the right of selection of the authorized treating physician passed to the claimant in 2009. The respondents contend the ALJ erred in likening this case to a petition to reopen.

The ALJ made the following findings of fact. After the emergency room visit of August 22, 2009, the claimant returned to her supervisor, and requested permission to see the doctors at Concentra medical Facility. The supervisor instructed the claimant to speak to the workers’ compensation specialist for the employer. The specialist instructed the claimant to call the adjuster at Cambridge Integrated Services. The adjuster’s own notes reflect that the claimant did, in fact, contact her on September 10, 2009. The adjuster’s notes, however, are without of any indication of whether the claimant requested permission to return to Concentra. It makes more sense, and is more credible, that the claimant, in fact, asked permission to return to Concentra.

In addition the ALJ made the following findings. The claimant, on October 2, 2009 filed an Application for Hearing setting for that “Claimant requested authorization to return to ATP and claim denied. Care selection passed to Claimant.” The adjuster received the hearing application which listed the issue of reopening. Thereafter, correspondence was sent to the adjuster indicating that medical care had been denied. In response to the hearing application and the subsequent correspondence, the claimant was

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not sent to Concentra. An appointment was not scheduled for the claimant to be examined at Concentra until January 12, 2010.

The ALJ determined that because the respondents failed to tender a physician until January 2010, after multiple notifications from the claimant that she was alleging a worsening of condition related to her November 8, 2008 injury the right to select a physician passed to the claimant. The ALJ concluded that the claimant exercised this right by selecting Dr. Engelstad.

Section 8-43-404(5)(a), C.R.S., provides that the employer or insurer has the right in the first instance to select the physician to attend the injured employee. If the employer or insurer exercises its right to select the treating physician, the claimant may not change physicians or employ additional physicians without obtaining permission from the employer, insurer, or an ALJ. However, if the employer fails timely to tender the services of a physician, the right of selection passes to the claimant and the claimant is entitled to have the physician she selects be an authorized treating physician. Rogers v. Industrial Claim Appeals Office, 746
P.2d 565 (Colo. App. 1987). We note § 8-43-404(5)(a) establishes that if the respondents do not respond in twenty days to a written request to have a personal physician attend the claimant they shall be deemed to have waived any objection thereto.

Here, the ALJ based his determination, at least in part, on the respondents’ failure to tender a physician in a “timely” manner given the respondents’ delay in scheduling an appointment with Concentra from the date the Application for Hearing was filed which listed petition to reopen as an issue. However, in our view it is not necessary to resolve the issue of whether the case was closed and whether the issue of reopening had been abandoned by the claimant.

We note that the Application for Hearing lists as an issue whether the claimant had requested and been denied authorization to return to the authorized treating physician and that therefore care selection had passed to the claimant. Section 8-43-404(5), C.R.S. implicitly contemplates that the respondents will designate a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo. App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), affd, Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo. App. 92CA0643, December 24, 1992) (not selected for publication). Here, the ALJ credited testimony from the claimant, and the lack of indications in the adjuster’s notes, that she asked permission to return to Concentra and was denied permission. This is a factual issue and we are bound by the ALJ’s determination if supported by substantial evidence. See Ruybal v. University Health Sciences Center, supra; see also Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000); Medina v. La Jara Potato Growers, W.C. No. 4-128-326 (June 1, 1998).

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In our view there is substantial evidence in the record supporting the ALJ’s determination that the claimant was denied medical care. Therefore, we are not persuaded to interfere with his determination that the right of selection had passed to the claimant.

IV.
The respondents next contend the ALJ erred in admitting into evidence and relying upon the adjuster’s claim notes. We note that during the testimony of the insurer’s claims adjuster, the issue arose of whether she was refreshing her memory by use of her adjuster’s log regarding a conversation in September 2009. Tr. (3/17/2010) at 80. Without being asked to by either of the parties, the ALJ requested to review the log. Tr. (3/17/2010) at 83-86. The ALJ after reviewing the log decided that he wanted the log in evidence and, sua sponte, made it an exhibit. Tr. (3/17/2010) at 86 ALJ Exhibit 1. The ALJ later relied on a different portion of the log relating to a conversation that took place on November 20, 2008 in determining that the claim was compensable. ALJ Exhibit 1 at 5. Regardless of any question concerning the propriety of the ALJ’s course of action in this respect, there was no objection by either party to the inclusion of the adjuster’s log into evidence. Tr. (3/17/2010) at 86.

Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1); see also § 8-43-210, C.R.S. (rules of evidence apply in workers’ compensation proceedings); Gallegos v. B M Roofing, W.C. 3-962-465 (January 25, 1991). Therefore we are not persuaded that the ALJ committed reversible error by consideration of the adjuster’s log.

V.
The respondents contend that the ALJ erred in his determination of the claimant’s AWW. The respondents argue that the claimant did not miss any time from work until August 2009 yet the ALJ based her earning as of November, 2008. The claimant had been demoted in December 2008 due to poor performance as a store manger and her pay had been reduced. The respondents argue that the claimant worked for the lower wages during all of 2009 not because of her back problems, but because of her poor job performance. The respondents argue that calculation of the claimant’s AWW as it existed before her demotion result in an unfair figure because it inflates the claimant’s earning ability. The respondents contend the ALJ abused his discretion and did not fairly determine the claimant’s AWW.

The ALJ made the following findings of fact regarding the claimant AWW. The claimant submitted her W-2 form in support of an AWW in the amount of $844.65. The

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claimant’s W-2 form for 2008 reflected gross earnings of $43,922. The AL found that her 2008 earning were the best reflection of her wages at the time of injury.

The ALJ did find that the claimant did not suffer a wage loss from her industrial injury of November 8, 2008, until August 24, 2009. However, we note that although the respondents had in their Answer Brief made arguments regarding the claimant’s pay reduction, the ALJ did not comment on the claimant’s demotion and change of wages. Nevertheless, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001).

Section 8-42-102(2)(d), C.R.S, sets forth the method for calculating the AWW. The overall purpose of the statutory scheme is to calculate “a fair approximation of the claimant’s wage loss and diminished earning capacity.” Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). The ALJ is afforded discretionary authority in calculating the wage. We may not interfere with the ALJ’s calculation of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An ALJ only abuses his discretion where the order “exceeds the bounds of reason,” such as where it is unsupported by the record or is contrary to law. Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). We cannot say that the use of earnings made by the claimant in the year of her injury as the basis for AWW exceeds the bounds of reason.

VI.
The respondents next contend that the ALJ erred in awarding temporary disability benefits. The respondents argue that the claimant’s authorized treating physician Dr. Schaut placed the claimant at MMI on December 9, 2008 with no permanent medical impairment and no restrictions. (Exhibit F-5 F-6). The respondents, citing § 8-42-105(3) C.R.S., argue that once the claimant reached MMI she was no longer entitled to temporary disability benefits. The respondents contend that until the issue of MMI is reviewed through the Division-sponsored independent medical examination (DIME) process there was no jurisdiction for the ALJ to order payment of temporary disability benefits, after the date of MMI.

MMI exists when any “medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. MMI is the point at which the right to temporary disability benefits ends and the claimant’s entitlement to permanent

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disability benefits commences. Section 8-42-105(3)(a), C.R.S. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002) (permanent disability cannot be determined until claimant reaches MMI).

Under § 8-42-105(3)(a), C.R.S. temporary total disability benefits terminate when the claimant reaches MMI. Burns v. Robinson Dairy, Inc., P.2d (Colo. App. No. 95CA0131, June 15, 1995) McKinley v. Bronco Billy’s, P.2d (Colo. App. No. 95CA0150, August 24, 1995). Further, the determination of MMI is governed by § 8-42-107(8)(b), C.R.S., which provides that the initial determination of MMI shall be made by the “authorized treating physician who has provided the primary care,” and if either party “disputes” that determination, the claimant must undergo a DIME. The statute also states that “a hearing on this matter shall not take place” until the DIME physician’s report has been filed with the Division of Workers’ Compensation. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo. App. 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo. App. 1995).

Section 8-42-105(3)(a)-(d), C.R.S. provides that TTD benefits shall continue until the first occurrence of any one of the following: (1) The employee reaches maximum medical improvement; (2) The employee returns to regular or modified employment; (3) The attending physician gives the employee a written release to return to regular employment; or (4) The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. These four conditions for termination of TTD benefits are independent of one another. As the court stated in Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995), the various provisions of § 8-42-105(3) are worded in the disjunctive.

Here, the ALJ awarded TTD benefits based upon the work restrictions assigned by Dr. Engelstad on November 30, 2009. It appears the respondents could not establish that TTD benefits should be terminated because the claimant was released to regular employment or released to available modified employment. However, the occurrence of MMI is a separate and sufficient ground for denying the claimant TTD benefits. Here, there is record support for the respondents’ contention that the claimant was placed at MMI with no impairment on December 9, 2008. Exhibit F at 5; Exhibit F at 6.

The claimant has essentially conceded that the claimant was placed at MMI on December 9, 2008. We further note that the respondents made this argument in their Answer Brief filed before entry of the order by the ALJ. It does not appear from the ALJ’s order that he considered the argument that the claimant was placed at MMI by an attending physician.

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In response to the respondents’ contention, the claimant argues that the ALJ’s award of TTD from August 24, 2009 is supported by substantial evidence. The claimant argues that Dr. Engelstad assigned restrictions of no work and the claimant has been unable to return to Dr. Engelstad for lack of funds and so remains under the restrictions originally assigned by Dr. Engelstad. The claimant does not address the respondent’s argument concerning Dr. Schaut’s expressed opinion concerning the issue of MMI on December 9, 2008.

On the issue of entitlement to TTD the ALJ made the following findings of fact. On August 24, 2009 the claimant went to her private physician Dr. Engelstad who took her off of work. According to the claimant, after her visit with Dr. Engelstad she then returned to the employer to reopen her November 8, 2008 workers’ compensation claim. In awarding temporary disability benefits the ALJ found that Dr. Engelstad on August 24, 2009 assigned the claimant restrictions of no work until November 30, 3009. The claimant has been unable to return to Dr. Engelstad, for lack of funds, and therefore, remains under the restrictions originally assigned by Dr. Engelstad. The claimant’s supervisor stated that the employer could not accommodate Dr. Engelstad’s temporary restriction of no work and that the claimant was placed on a leave of absence. The ALJ concluded that the claimant had a medical incapacity as evidenced by loss of reduction of bodily function in her back and suffered a loss of wage earning capacity as a result of the restrictions of Dr. Engelstad.

This does not appear to be a case such as in Berg v. Industrial Claim Appeals Office 128 P.3d 270 Colo. App. 2005) where a finding of MMI could be reopened based on a mistake of fact. I Berg the physician was a DIME physician and the court of appeals concluded that because the power to reopen is discretionary, there is an inherent protection against improper collateral attacks on a DIME determination of MMI. The court noted in Berg that if a party files a petition to reopen in an attempt to circumvent the DIME process and gain the advantage of a lower burden of proof, the ALJ has authority to deny it. Here, it does not appear from the reasoning of the ALJ that he was utilizing his discretionary power to reopen the issue of MMI.

We note that the ALJ in the order portion of his order determined that the claimant suffered a subsequent worsening of her low back condition resulting in her becoming disabled for the purposes of TTD benefits on August 24, 2009, and that worsening was due to the natural progression of the November 8, 2008, injury. However, this does not appear to be a case where there was reopening under 8-43-303 C.R.S. As noted above, the case was not even found compensable until the entry of the ALJ’s order here, and there was no admission filed. We also note that in the ALJ’s statement of the issues reopening was not listed.

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Here, the ALJ resolved the factual dispute concerning whether the right of selection had passed to the claimant. However, we see no resolution of any dispute concerning which physician was an authorized treating physician within the meaning of § 8-42-107(8)(b) or whether the physician made a determination of MMI. The order does not reveal that any factual determinations were requested by the claimant or made by the ALJ on whether there was an issuance of conflicting or ambiguous opinions concerning whether the claimant has reached MMI. See generally Burns v. Robinson Dairy, Inc., supra (ALJ is not at liberty to disregard the attending physician’s opinion that a claimant is released to return to employment, unless the record contains conflicting opinions from multiple attending physicians regarding a claimant’s release to work).

The claimant has chosen not to address the issue of termination of TTD based upon MMI, but has instead argued that she is entitled to TTD benefits because she has testified that she is unable to return to work, Dr. Englestad has placed her under restriction and the employer is unable to accommodate the restrictions. Where it does not appear that there was a dispute on whether the attending physician issued conflicting opinions concerning MMI the ALJ may not award TTD without requiring the claimant to obtain a DIME to challenge the determination of MMI. See Monfort Transp. v. Industrial Claim Appeals Office of State of Colo. 942 P.2d 1358 (Colo. App. 1997) (TTD benefits are to cease when the claimant reaches MMI. Sections 8-42-105(3)(a) and 8-42-106(2)(a)).

It is clear that TTD benefits cease when a claimant reaches MMI, and may not be paid so long as the claimant continues at MMI. Section 8-42-105(3)(a), C.R.S.; Churchill, v. Good Year Tire Rubber Company, W.C. No. 4-203-686 (January 25, 2007); Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). Consequently, an award of TTD benefits could not be made after December 9, 2008, the undisputed date that the claimant’s attending physician placed her at MMI. In our view, the ALJ erred in awarding TTD beyond the date the claimant reached MMI. Therefore, we must set aside that part of the ALJ’s order that awarded of TTD benefits.

IT IS THEREFORE ORDERED that the ALJ’s order dated April 6, 2010 is set aside insofar as it awarded TTD benefits after December 9, 2008.

IT IS THEREFORE ORDERED that the ALJ’s order dated April 6, 2010 is otherwise affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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ELAINE LOOFBOURROW, Attn: F/K/A ELAINE LUNSFORD, 3740 W 95TH PLACE, WESTMINSTER, CO, (Claimant)

HARMAN-BERGSTEDT, INC. DBA KENTUCKY FRIED CHICKEN, LAKEWOOD, CO, (Employer)

ZURICH AMERICAN INSURANCE COMPANY, Attn: PATTY KELTY, C/O: EXCHANGING, 1501 LUNA ROAD, CARROLLTON, TX, (Insurer)

LAW OFFICES OF O’TOOLE SBARBARO, PC, Attn: JOHN A. SBARBARO, ESQ., WEST TWELFTH AVENUE, DENVER, CO, (For Claimant)

THOMAS, POLLART MILLER, LLC, Attn: MARGARET T. KECK, ESQ., SOUTH QUEBEC STREET, SUITE 220-A, GREENWOOD VILLAGE, CO, (For Respondents)

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