IN THE MATTER OF THE CLAIM OF GABRIEL G. ABEYTA, Claimant, v. ROBINSON BRICK COMPANY, Employer, and AMERICAN HOME INSURANCE, Insurer, Respondents.

W.C. No. 4-741-115.Industrial Claim Appeals Office.
June 3, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated March 4, 2009 that determined the respondents failed to overcome the opinion of the Division-sponsored independent medical examination (DIME) physician that the claimant had not reached maximum medical improvement, but denied the claimant’s request for temporary disability benefits after May 23, 2008. We affirm.

Several of the ALJ’s findings of fact are summarized as follows. The claimant sustained a compensable injury on June 12, 2007. Dr. Hewitt performed surgery on November 13, 2007 and later restricted the claimant from lifting over 30 pounds. He later examined the claimant on December 5, 2008 and recommended that the claimant undergo an MRI arthrogram. Dr. Walker provided treatment to the claimant. After examining the claimant on May 23, 2008, he opined that the claimant should “do a trial of regular duty without restrictions,” and released the claimant to return to work without restrictions on that date. Dr. Walker subsequently indicated that the claimant could perform regular duties without restrictions. Dr. Hewitt’s recommendation for an MRI and his earlier restrictions for the claimant did not conflict with Dr. Walker’s release of the claimant to return to work without restrictions.

The claimant argues that the statutory scheme governing the authority of the DIME physician requires the ALJ to consider the DIME physician’s opinion concerning the claimant’s work restrictions when determining whether the claimant was released to regular employment. In support of his contention, the claimant refers to two statutory provisions concerning the DIME process. Section 8-42-107(1), C.R.S. 2008 includes the statement that the section “governs the selection of an independent medical examiner . . .

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to resolve disputes arising under section 8-42-107.” Section 8-42-107(3), C.R.S. 2008 states that “[temporary disability terminates as to injuries coming under any provision of this section upon the occurrence of any of the events enumerated in section 8-42-105(3).” Thus, according to the claimant, these provisions plainly authorize the DIME physician to render an opinion as to the claimant’s work restrictions in the context of a release to return to regular employment, which the ALJ must consider regarding the termination of temporary disability benefits.

However, as the ALJ recognized, § 8-42-105(3)(c) permits termination of temporary disability benefits when the claimant is released to regular employment, and this basis for termination of temporary benefits is independent of terminations based on maximum medical improvement under § 8-42-105(3)(a), C.R.S. 2008. Moreover, nothing in § 8-42-107(8)(b) or (c) treats the opinion of the DIME physician as binding with respect to the claimant’s ability to perform regular employment. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680, 685 (Colo.App. 1999) (DIME provisions apply to determinations of maximum medical improvement, but Act creates no specific procedure to review attending physician’s release to regular employment).

Further, the Court of Appeals has determined 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. The courts have determined that an ALJ may not disregard the attending physician’s opinion that a claimant is released to return to regular employment Imperial Headware, Inc. v. Industrial Claim Appeals Office 15 P.3d 295
(Colo.App. 2000); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Therefore, we perceive no error in the ALJ’s denial of the disputed period of TTD benefits.

The claimant asserts that the ALJ failed to recognize an alleged conflict between the opinions of different attending physicians concerning the claimant’s ability to return to work. The ALJ found that Dr. Walker was an attending physician who released the claimant to return to work without restrictions on May 23, 2008. In addition, the ALJ found that on January 30, 2008 Dr. Hewitt, a surgeon who was also an attending physician, examined the claimant and restricted the claimant from lifting over 30 pounds. The ALJ found that the restriction imposed by Dr. Hewitt did not conflict with Dr. Walker’s release for the claimant to return to work without restrictions. The claimant refers to subsequent recommendations of Dr. Hewitt in support of his contention the ALJ effectively disregarded Dr. Hewitt’s restrictions when considering Dr. Walker’s release to return to regular employment. The claimant notes that Dr. Hewitt evaluated the claimant on December 5, 2008 and reported that the claimant’s range of motion had decreased since Dr. Hewitt had last seen him and recommended additional medical care. The

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claimant therefore appears to argue that the ALJ should have inferred that Dr. Walker’s release of the claimant to regular employment conflicted with Dr. Hewitt’s observations and opinions.

It is not necessarily dispositive that the conflicting opinions were not issued simultaneously, or that the attending physicians examined and evaluated the claimant at different times. In Bestway Concrete the court rejected the argument that an attending physician’s opinion could not override that of another physician where the former was issued “long after” the original release to work. In the court’s view, it was not necessary that conflicting opinions concerning the claimant’s ability to work could only result if the various physicians “were all contemporaneously attending physicians.” Bestway Concrete, 984 P.2d at 685.

Nonetheless, the determination of whether a claimant has been released to return to work by the attending physician is a question of fact. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App.1997). Thus, the ALJ has the discretion to resolve conflicts in the physician’s report, or to resolve conflicts between attending physicians. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (when treating physician issues conflicting opinions concerning maximum medical improvement, it is for the ALJ to resolve such conflict). An ALJ’s factual determinations are binding on review if there is substantial evidence in the record to support them. Section 8-43-301(8), C.R.S. 2008; Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

The claimant refers to evidence in the record that could, conceivably, support a finding by the ALJ that there were conflicts between attending physicians as to whether the claimant could return to regular employment. However, it is apparent that the record contains evidence which supports the ALJ’s finding of no conflict between Dr. Walker’s release of the claimant to regular duties on May 23, 2008 and Dr. Hewitt’s earlier weight-lifting restrictions. For example, on January 30, 2008, Dr. Hewitt opined that the claimant “would benefit from another two to three weeks of formal physical therapy followed by transition to a home exercise program.” Exhibit H. He subsequently opined on December 5, 2008 that “[g]iven his persistent symptoms, I do feel that repeat imaging is reasonable and should be an MRI arthrogram to assess his labral repair.” However, Dr. Hewitt did not impose any weight restrictions at that time. Exhibit C. We conclude that the ALJ’s findings regarding the claimant’s release to return to regular duties without restrictions are supported by the record and, therefore, binding on review. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ

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free to credit part of expert’s opinion); see also, Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993) (ALJ may credit part, but not all of witness’ testimony).

The claimant also asserts that the ALJ erred by not expressly considering in his decision the claimant’s testimony concerning his capacity to work when determining whether the claimant was entitled to temporary total disability (TTD) benefits. The ALJ considered the issue of the claimant’s entitlement to TTD benefits in the context of a release to return to regular employment, which is a basis for ending, rather than beginning, such benefits. Section 8-42-105(3)(b). However, the ALJ’s finding that the claimant had been released to return to regular employment supports his determination that the claimant is not entitled to TTD benefits for the period of time beginning with the attending physician’s release of the claimant to regular employment. See, e.g., PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 545-48 (Colo. 1995) (outlining statutory bases for entitlement to disability benefits and termination of TTD benefits; noting that temporary disability benefits intended to compensate claimant for wages lost during time claimant unable to work due to injury). We therefore find no reversible error as to the ALJ’s determination that the claimant was not entitled to TTD benefits after the date he was found to be released to return to regular employment.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

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GABRIEL G ABEYTA, DENVER, CO, (Claimant).

ROBINSON BRICK COMPANY, Attn: BRIAN OGLE, C/O: GENERAL SHALE D/B/A ROBINSON BRICK CO, JOHNSONVILLE, TN, (Employer).

AMERICAN HOME INSURANCE, Attn: LUCY ARGUELLO, C/O: AIG — AMERICAN HOME ASSURANCE, DENVER, CO, (Insurer).

PEPE J MENDEZ ASSOCIATES, PC, Attn: PEPE J. MENDEZ, ESQ., DENVER, CO, (For Claimant).

RITSEMA LYON, PC, Attn: KYLE L. THACKER, ESQ., DENVER, CO, (For Respondents).

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