W.C. No. 4-210-492Industrial Claim Appeals Office.
October 17, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) which denied the claim for temporary disability benefits. We affirm.
The ALJ’s findings may be summarized as follows. On March 24, 1994, the claimant sustained a compensable back injury. The employer did not designate a treating physician, and therefore, the claimant was transported to an emergency room where she was treated by Dr. Richardson. Thereafter, the claimant was treated by Dr. Trainer, D.C., Dr. Stanton, D.O., an Dr. Diffee, Ph.D. The ALJ determined that all of these providers were “authorized.”
The claimant missed only one day of work, March 25, 1994. Thereafter, she returned to work until she was terminated for cause on April 28, 1994. The claimant sought temporary disability for the period of time after the separation.
The ALJ credited a report of Dr. Richardson indicating that the claimant had no work restrictions after March 26, and a report of Dr. Trainer releasing the claimant to perform her regular occupation on April 12, 1994. Under these circumstances, the ALJ concluded that the claimant was not entitled to any temporary total disability benefits because she “failed to prove an inability to work due to her compensable injury.”
On review, the claimant contends that the record does not support the ALJ’s finding that she was “at fault” for the April 28 separation. Therefore, the claimant argues that the principles announced in PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Colo. 1995), entitle her to temporary total disability benefits. We reject this argument because we agree with the respondents that, whether or not the claimant was “at fault” for her separation, she was not “disabled” as of April 28.
Section 8-42-105(3)(c), C.R.S. (1995 Cum. Supp.), provides that temporary total disability benefits shall continue until the “attending physician gives the employee a written release to return to regular employment.” The opinion of the attending physician that the claimant is able to return regular employment is “conclusive” on the issue. McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995) Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Moreover, the fact that a claimant has not reached maximum medical improvement does not preclude termination of temporary disability benefits where the attending physician releases the claimant to regular employment. Burns v. Robinson Dairy, Inc., supra.
We have previously recognized that a claimant may have more than one “attending physician” for purposes of § 8-42-105(3)(c). When such situations arise, and there is a conflict between the attending physicians concerning the claimant’s ability to perform regular employment, we have held that the ALJ may resolve the conflict in the evidence. Eg. Monaco v. Hewlett Packard, W.C. No. 4-120-069, November 10, 1993; cf. Burns v. Robinson Dairy, Inc., supra, (“unless the record contains conflicting opinions from attending physicians regarding a claimant’s release to work, the ALJ is not at liberty to disregard the attending physician’s opinion” concerning the release).
Here, as the ALJ found, the claimant had multiple attending physicians. Although Dr. Stanton did not release the claimant to regular employment, Dr. Trainer did. Further, Dr. Richardson’s notes reflect that he restricted the claimant only on March 25 and March 26. Therefore, the attending physicians held conflicting opinions concerning the claimant’s ability to perform regular employment, and the ALJ resolved this conflict against the claimant. We are not at liberty to interfere with this factual determination. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
It follows that, because the claimant was released to regular employment by her attending physician, she was not entitled to temporary disability benefits after April 12. Section 8-42-105(3)(c). Under these circumstances it is immaterial whether the claimant was “at fault” for her separation on April 2 . In the rubric of the PDM Molding, Inc. case, the claimant’s wage loss after April 12 did not bear any causal relationship to the injury because she was fully capable of performing her regular duties.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 19, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 17, 1995 to the following parties:
Jamie Day-Ingledue, P. O. Box 1696, Broomfield, CO 80038
Richland Homes, Inc., 8791 Wolff Ct., Westminster, CO 80030-0000
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
By: ________________________