W.C. No. 4-260-804Industrial Claim Appeals Office.
April 3, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded temporary partial disability benefits from September 4, 1995 to April 16, 1996. We affirm.
The claimant sustained a compensable back injury on June 10, 1995, while employed as a rafting guide by respondent Echo Canyon Rafting Expeditions (Echo Canyon). At the time of the injury with Echo Canyon, the claimant also held other jobs as a lifeguard and a youth program director.
It is undisputed that the claimant’s authorized treating physician was Dr. Clark. However, at Dr. Clark’s office the claimant was examined and treated by a physician’s assistant (P.A.), Tracie Rieker. In a note dated February 2, 1996, P.A. Rieker stated that “we” examined the claimant on June 13 and June 26. Further, Rieker stated that, as part of the claimant’s physical therapy, the claimant was “instructed to not white water raft and no lifeguarding because of the responsibilities of strength placed on the low back.”
The respondents argued to the ALJ that, because Rieker was not a physician, her opinion concerning the claimant’s restrictions was insufficient to establish entitlement to temporary disability benefits under § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.). However, based on Rieker’s February 2 report and a physical therapy report dated April 19, 1996, the ALJ found that, “it is very reasonably presumed that Dr. Clark’s office felt that claimant could not have returned to her position” as a white water rafter until April 1996. The ALJ also stated that the claimant “established credible evidence that she was medically restricted from performing her duties as a rafting guide and swim instructor.”
On review, the respondents reiterate their position that, because Rieker was not a “physician,” her opinion concerning the claimant’s restrictions was insufficient to establish entitlement to temporary disability benefits. In support of this position, the respondents cite our decision in Ray v. Martin Marietta Corp., W.C. No. 4-210-328 (March 22, 1995), aff’d., Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication). Under the circumstances present here, we disagree with the respondents.
In Ray, the court of appeals stated that, “because an attending physician’s opinion that a claimant is able to return to work is sufficient to terminate temporary disability benefits, an attending physician’s opinion that a claimant has never been disabled from regular employment is necessarily sufficient to preclude the initiation of temporary disability benefits.” See also, Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). However, the Ray court did not hold that a claimant must produce a signed physician’s report establishing the medical restrictions. Instead, the court stated that the statute requires only “credible evidence establishing that a claimant is medically restricted from performing regular duties.”
In determining whether there is sufficient evidence, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In this regard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, the record contains substantial evidence that Dr. Clark is responsible for the claimant’s restrictions. The claimant’s testimony, as well as the letterhead on P.A. Rieker’s February 2, 1996 report, establish that Rieker performed her duties as a member of the Penrose-St. Francis Medical Group, under the direction of Dr. Clark and Dr. LaPorte. Moreover, the claimant’s x-ray reports, as well as the report of consultation issued by Dr. Brown, were addressed to Dr. Clark.
Under these circumstances, the ALJ could plausibly infer that P.A. Rieker acted under the direct supervision and control of Dr. Clark when she imposed the restrictions on the claimant. Moreover, under §12-36-106(5)(a) (b)(I), C.R.S. (1996 Cum. Supp.), duties delegated to a physician assistant “shall not be performed except under the personal and responsible direction and supervision of a person licensed under the laws of this state to practice medicine.” The inference of Dr. Clark’s supervision and control is made even stronger by the fact that the February 2 report states that “we saw” the claimant and “we obtained some x-rays.”
IT IS THEREFORE ORDERED that the ALJ’s order dated July 9, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed April 3, 1997 to the following parties:
Theresa Lynn Bassett, 607 Southeast Byers, #D, Pendleton, OR 97801
Echo Canyon Rafting Expeditions, P.O. Box 1002, Colorado Springs, CO 80901
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency mail)
Karen Lambart Spencer, Esq., 403 S. Tejon, Colorado Springs, CO 80903 (For the Claimant)
By: _______________________________