IN THE MATTER OF THE CLAIM OF LINDA ADAMS, Claimant, v. SEALY INC., Employer, and RSKCO, Insurer, Respondents.

W.C. No. 4-476-254Industrial Claim Appeals Office.
October 4, 2001

The respondents seek review of orders of Administrative Law Judge Wheelock (ALJ) dated March 22 and April 20, 2001, which require the payment of temporary disability benefits effective September 19, 2000, and grant a change of physician. We affirm the award of temporary disability benefits and dismiss without prejudice the petition to review the order on medical benefits.

On July 31, 2000, the claimant suffered work-related injuries while pulling heavy wires from a machine. The claimant testified that she immediately felt pain in her left upper extremity and chest, and later developed pain in her neck and right upper extremity. (Tr. p. 33). The claimant reported the injury and was referred to Dr. Bergland for treatment. Dr. Bergland diagnosed a “muscle strain” and released the claimant to modified employment which did not require use of the left arm.

The employer provided modified employment which the claimant was physically capable of performing until the claimant was assigned to paint with her right arm. The claimant testified that when she attempted to paint she experienced severe pain in her right upper extremity. The employer then reassigned the claimant to another job. On September 19, 2000, the employer again assigned the claimant to paint. The claimant refused and the employer terminated her employment on the grounds of insubordination.

On September 27, 2000, Dr. Bergland placed the claimant at maximum medical improvement (MMI) with no permanent impairment and released the claimant to return to regular employment. Although Dr. Bergland was unable to explain the claimant’s left upper extremity dysfunction, he did not perform any further diagnostic testing and referred the claimant to her personal physician. Dr. Bergland did not address any right upper extremity complaints.

Dr. Hall performed a Division-sponsored independent medical examination (DIME) on the issues of MMI and medical impairment. In a report dated January 11, 2001, Dr. Hall attributed the claimant’s right upper extremity pain to the industrial injury. Dr. Hall also opined that the claimant essentially had a dysfunctional left upper extremity and that until the cause of the claimant’s left upper extremity dysfunction was identified, the claimant was not at MMI.

The claimant was also examined by Dr. Ciccone, Dr. Ridings, and Dr. Morgan. These physicians were unable to explain the claimant’s upper extremity problems. However, they disagreed with Dr. Hall’s finding of a causal connection between the claimant’s employment and the claimant’s right upper extremity problems.

In an order dated March 22, 2001, the ALJ found the respondents failed to overcome Dr. Hall’s opinions on the cause of the claimant’s upper extremity problems and the need for further medical treatment. In support the ALJ found the claimant’s left arm problem has yet to be diagnosed and that the right upper extremity problems are causally related to the industrial injury. Consequently, the ALJ determined the respondents failed to overcome Dr. Hall’s finding that the claimant is not at MMI. The ALJ also ordered a change of treating physician, directing the parties to agree on a physician who is a physiatrist.

The ALJ further found the claimant was not responsible for the termination of the modified employment because it exceeded the claimant’s physical limitations caused by the industrial injury. Therefore, the ALJ ordered the respondents to reinstate temporary total disability benefits retroactive to September 19, 2000.

On April 20, 2000, the ALJ entered a “Corrected Order” which determined the claimant’s temporary disability rate based upon a stipulated average weekly wage. The respondents timely appealed the March 22 and April 20 orders.

On appeal, the respondents contend the ALJ erred in failing to find they overcame Dr. Hall’s opinions by clear and convincing evidence. The respondents argue there is overwhelming evidence in the medical reports of Dr. Bergland, Dr. Ciccone, Dr. Ridings, and Dr. Morgan to refute Dr. Hall’s finding of a causal connection between the claimant’s right arm problems and the industrial injury. We are not persuaded there is any reversible error.

Initially, we note that the respondents’ Designation of Record includes the “entire Division of Workers’ Compensation and Division of Administrative Hearings files.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.

Section 8-42-107(8)(c), C.R.S. 2001, provides that the DIME physician’s impairment rating is binding unless overcome by “clear and convincing evidence.” Clear and convincing evidence is evidence which demonstrates that it is “highly probable” the DIME physician’s rating is incorrect. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Put another way, in order to overcome the DIME physician’s opinion, there must be evidence establishing that the DIME physician’s determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318

It is now well established that the DIME physician’s opinion concerning the cause of the claimant’s need for additional treatment is an inherent part of the physician’s determination of MMI. See Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998) Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). Consequently, the DIME physician’s determination of causation is binding unless overcome by clear and convincing evidence.

Whether the respondents sustained their burden of proof is a question of fact for resolution by the ALJ. We must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Application of the substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.

The respondents’ arguments essentially request that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the conflicting medical opinions. However, we have no authority to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, the respondents have failed to establish grounds which affords a basis for interfering with the ALJ’s determination that the conflicting medical evidence did not rise to the level of clear and convincing evidence that Dr. Hall’s opinions were wrong.

Next, the respondents contend the claimant was responsible for the termination of her modified employment because she was insubordinate in refusing to perform duties that were within her medical restrictions. Again, we are not persuaded there is any error.

Section 8-42-105(4), C.R.S. 2001, which applies to this July 2000 injury, provides that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” In Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001), we concluded that § 8-42-105(4), and the identical language in §8-42-103(1)(g), C.R.S. 2001, applies where the claimant is terminated from post-injury modified employment. McGaffey v. Assured Transportation Delivery, Inc., W.C. No. 4-434-706 (April 27, 2001). We have also held that the statutory term “responsible” is analogous to the concept of “fault” in unemployment insurance cases. Gehrig v. Danella Construction, W.C. No. 4-470-914(August 1, 2001). Consequently, the claimant is not “responsible” for the loss of employment unless the claimant performed some volitional act or exercised some control in the circumstances which caused the termination. See Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987).

Here, the ALJ was persuaded that the claimant was not insubordinate because she refused to perform duties which were not within her physical ability. That determination is supported by the claimant’s testimony, which the ALJ implicitly found credible, and it supports a conclusion that the claimant did not act volitionally, and thus was not responsible for the termination of her employment. See Frontier Airlines, Inc. v. Industrial Commission, 719 P.2d 739 (Colo.App. 1986).

The respondents also contend that in any event, the ALJ erred in awarding temporary disability benefits after September 27, 2000, when Dr. Bergland released the claimant to return to regular employment. We disagree.

Under § 8-42-105(3)(c), C.R.S. 2001, temporary disability benefits terminate when the attending physician gives the claimant a release to return to her regular employment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). For purposes of this statute, the attending physician’s opinion of the claimant’s ability to perform regular or modified employment is dispositive unless there are multiple attending physicians with conflicting opinions. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).

We have held that the status of MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997) Carrillo v. Farmington PM Group, W.C. No. 3-111-178 (August 26, 1997) Powell v. L D Electric, W.C. No. 4-150-716 (March 21, 1997). Thus, where a single industrial injury has multiple components, the claimant’s permanent disability cannot be ascertained until the claimant has reached MMI for all compensable components of the injury.

This analysis is equally applicable where the attending physician issues a release to regular employment. This is true because the question is whether the effects of all compensable components of the industrial injury have sufficiently improved that the claimant is physically capable of performing her regular employment. Where the claimant suffers multiple injuries in the same industrial accident, it would be contrary to the purpose of the statute to expect a claimant to return to regular employment where she is still disabled by some compensable component of the injury. Therefore, an attending physician’s release to regular employment is not sufficient to terminate temporary disability benefits under § 8-42-105(3)(c) unless the physician’s release addresses all compensable components of the industrial injury.

The determination of whether the attending physician has issued a release to return to work is a question for fact for resolution by the ALJ. Burns v. Robinson Dairy, Inc., supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Popke v. Industrial Claim Appeals Office, supra.

In deposition testimony, Dr. Bergland made it clear that the September 27 release to regular employment only pertained to the claimant’s left upper extremity. (Bergland depo. p. 25). The ALJ determined that the claimant also injured her right upper extremity during the industrial accident and that the right upper extremity injury was disabling. Consequently, the ALJ’s findings compel the conclusion that Dr. Bergland did not release the claimant to regular employment for all compensable components of the injury. Because the claimant was not at MMI and there was no modified employment offered after September 27, 2000, the ALJ properly ordered the respondents to reinstate temporary disability benefits.

The respondents also contend the ALJ erroneously granted a change of physician. We conclude this portion of the ALJ’s order is not currently subject to review.

The respondents are liable for emergency and authorized treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2001; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). “Authorization” refers to the physician’s legal authority to treat, and is distinct from whether treatment is “reasonable and necessary” within meaning of § 8-42-101(1)(a). Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993).

Section 8-43-301(2), C.R.S. 2001, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review.” Orders which do not either award or deny benefits or penalties are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Similarly, orders which determine liability for benefits or penalties without determining the amount of benefits or penalties to be awarded are not final for purposes of review. See United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146
(Colo.App. 1999).

In light of these principles, we have previously held that a general award of medical benefits is not final and reviewable unless the record demonstrates that liability for specific medical treatment was at issue. The rationale for these decisions is that the respondents maintain the right to contest the reasonableness and necessity for particular medical benefits. E.g. Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828 (August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Similarly, we have held that an order authorizing a change of physician is not final and reviewable absent an order requiring payment for specific medical treatment. Such orders merely determine a physician is legally authorized to treat the claimant, without requiring the respondents to pay any particular medical benefits. E.g. Dimitt v. A P Services/Prime Cut, W.C. No. 4-426-344 (October 16, 2000); Fernandez v. City and County of Denver, W.C. No. 4-122-784 (February 7, 1996).

Here, the ALJ granted the claimant’s request to treat with a physiatrist. However, the ALJ’s order does not award or deny the claimant any particular medical benefit. To the contrary, the ALJ expressly reserved for future determination the compensability of any medical treatment recommended by the designated physiatrist. Consequently, the order granting a change of physician is interlocutory and not currently subject to review. See Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986) (order may be partially final and partially not final).

IT IS THEREFORE ORDERED that the ALJ’s orders dated March 22, 2001 and April 20, 2001 are affirmed insofar as they award temporary disability benefits.

IT IS FURTHER ORDERED that the respondents’ petition to review the ALJ’s order which grants a change of physician is dismissed without prejudice.


____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed October 4, 2001 to the following parties:

Linda Adams, 34385 Antioch Rd., Yoder, CO 80864

Scott Brubaker, Sealy, Inc., 6275 Lake Shore Court, Colorado Springs, CO 80915

John Anderson, RSKCo, P. O. Box 5408, Denver, CO 80217-5408

William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)

Janice Greening, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)

BY: A. Pendroy