W.C. No. 4-296-456Industrial Claim Appeals Office.
July 31, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which awarded the claimant temporary total disability benefits for the period May 27, 1996 through December 15, 1996, inclusive. We affirm.
The claimant sustained a back injury on May 7, 1996, while performing work as a roofer. The claimant became temporarily totally disabled as of May 7.
It is undisputed that in the latter part of May 1996, the employer sent a certified letter to the claimant offering “work at light duty.” The letter described the claimant’s prospective duties as “basic roof estimating.” The claimant’s treating physician, Dr. Homburg, signed a form approving “the duties involved as being within the physical restrictions established” on May 21, 1996.
However, the claimant did not commence employment. He testified that he spoke with his superior, Mr. Cary, and expressed concern that the estimating job would require him to carry a heavy ladder and walk on pitched roofs. The claimant believed that he was incapable of performing these duties due to ongoing pain. The claimant’s wife corroborated the claimant’s testimony concerning the conversation with the employer.
Subsequently, on May 29, 1996, Dr. Homburg issued a report stating that the claimant was temporarily incapacitated for three months due to back pain, and that he was precluded from work “as both roof installer and roof estimator.” In his deposition, Dr. Homburg testified that he did not understand the duties of a roof estimator at the time he signed the modified duty release, and that he changed his opinion concerning the claimant’s ability to work as a roof estimator after discussing the duties with the claimant. Dr. Homburg also testified the claimant was precluded from lifting over ten pounds on a repetitive basis, and should not perform any duties which caused him pain.
Expressly crediting the claimant’s testimony, the ALJ found that the claimant would not have been able to perform the job which was offered by the employer. Consequently, the ALJ concluded that the offer of reemployment was ineffective, and that the claimant is entitled to temporary disability benefits for the disputed period. The ALJ also found that the offer was ineffective because it exceeded the claimant’s “educational and training limitations.”
On review, the respondents contend that the ALJ erred in finding that the offer of modified employment was ineffective to terminate the claimant’s entitlement to temporary total disability benefits under the statute currently codified at §8-42-105(3)(d)(I), C.R.S. (1996 Cum. Supp.). The respondents cite the employer’s testimony that the claimant would not have been required to move ladders or work on pitched roofs. The respondents also point to Dr. Homburg’s testimony that the claimant could have attempted the job so long as he was not required to move ladders or work on pitched roofs. We are not persuaded.
Section 8-42-105(3)(d)(I) provides for termination of temporary total disability benefits when the attending physician gives the employee a release to return to modified employment, and the employment is offered to the employee in writing, and the employee does not begin the employment. As the respondents argue, an ALJ is not free to depart from the attending physician’s opinion concerning the claimant’s ability to perform modified employment. See Burns v. Robinson Dairy, Inc., 911 P.2d 661(Colo.App. 1995).
However, as the claimant points out, we have previously held that the questions of whether the attending physician released the claimant to modified employment, and whether the proffered employment falls within the restrictions, are questions of fact to be determined by the ALJ. Rodriguez v. Noble Electric Contracting, W.C. No. 4-254-794 (September 27, 1996). Further, if the attending physician gives conflicting opinions concerning the claimant’s ability to perform modified employment, it is for the ALJ to resolve the conflict and determine the attending physician’s true opinion. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Burns v. Robinson Dairy, Inc., supra.
Substantial evidence is evidence which would support a reasonable belief in the existence of a fact without regard to conflicting testimony and inferences. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In determining whether there is substantial evidence to support the ALJ’s order, we are obliged to defer to his resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra; § 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Here, the claimant testified that he discussed the modified employment with his supervisor, and that the claimant understood from the discussion that he would be expected to carry ladders and work on pitched roofs when necessary. The claimant also testified that he was in too much pain to perform these duties. (Tr. pp. 11, 15, 22, 23). The claimant’s wife corroborated the claimant’s testimony. (Tr. pp. 30-32).
Moreover, the attending physician presented conflicting opinions concerning the claimant’s ability to perform the modified employment. The ALJ resolved conflicts in the evidence and found that the job required transporting ladders and occasionally working on pitched roofs. Further, the ALJ determined that these activities were beyond the restrictions established by the attending physician. We are in no position to substitute our judgment for that of the ALJ concerning these dispositive factual issues.
In light of this disposition, we need not consider whether the ALJ properly considered whether the claimant possessed the intellectual capacity to perform the modified employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 29, 1997 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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 July 31, 1997 to the following parties:
Alejandro Chavez, 2025 N. College Ave., #64, Ft. Collins, CO 80524
Crickette Lawrence, Claims Manager, T.T.C., Illinois, Inc., 50 Meadowview Center, Kankakee, IL 60901-2041
Evelyn Bonham, Credit General Ins. Co., GAB Robins North America, Inc., P.O. Box 370750, Denver, CO 80237-0750
Craig Stirn, Esq., 2629 Redwing Road, Ste. 280, Ft. Collins, CO 80526, (For the Claimant).
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202, (For the Respondents).
By: ________________________________