W.C. No. 4-741-382.Industrial Claim Appeals Office.
May 14, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 23, 2009 that denied the claim for a period of temporary total disability (TTD) benefits. We affirm.
The claimant suffered an admitted industrial injury on November 1, 2007. The authorized treating physician (ATP) saw the claimant on the day of his accident and released him to full duty work with no restrictions. The claimant saw the ATP a number of times throughout November, December and January 2008. The ATP released the claimant to full duty with no restrictions at each of these examinations. The ATP placed the claimant at maximum medical improvement (MMI) on January 24, 2008 with no restrictions and no permanent medical impairment. The respondents filed an admission consistent with the ATP’s opinions. The claimant requested a Division-sponsored independent medical examination (DIME). The DIME physician on June 25, 2008 opined that the claimant was not at MMI and was not physically fit to return to any job for which he had training and experience. The respondents admitted for additional medical treatment in light of the DIME physician’s opinion but not for additional TTD. When the claimant returned to the ATP on September 9, 2008 the ATP imposed work restrictions of no lifting greater than fifteen pounds. The respondents stipulated that they were liable for TTD benefits beginning September 9, 2008.
The ALJ determined that he was not at liberty to disregard the ATP’s opinion concerning the claimant’s release to work. The ALJ further noted that the DIME physician was not an attending physician. The ALJ concluded that the claimant failed to
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prove by a preponderance of the evidence that he was entitled to TTD benefits beyond the stipulated benefits for TTD beginning September 9, 2008 when the ATP imposed work restrictions.
We note initially that there do not appear to be factual disputes on appeal such as whether the record contained conflicting opinions from ATPs regarding the claimant’s release to work. However, to the extent that there are factual disputes the record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988).
The claimant contends the ALJ erred in relying solely on the reports of the ATP and ignoring contrary evidence found in the report of the DIME physician. The claimant concedes that if the ATP gives the claimant a written release to return to regular employment then TTD benefits can be terminated. However, citing Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997), the claimant argues that if a claimant can show either by his own testimony or the testimony of another physician that he is unable to perform his regular duties as a result of the work injury then he is entitled to TTD benefits. We disagree.
As we read Lymburn v. Symbios Logic, the court determined that § 8-42-105(3)(c), C.R.S. 2008, specifically mandates the termination of TTD benefits when an attending physician releases a claimant to return to work, although the case also holds that § 8-42-105 does not impose a requirement for a physician’s opinion with respect to the initial entitlement to receive TTD benefits. Here the ALJ did not reject the claim for TTD benefits because there was no physician’s opinion establishing initial entitlement to TTD benefits. Rather the ALJ denied the claim for TTD benefits because the ATP had, for all of the relevant periods, released the claimant to perform regular employment.
Further, because § 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.
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We are not persuaded by the claimant’s arguments concerning the opinions of the DIME physician that the ALJ erred in denying the requested TTD benefits. As required by § 8-42-107(8), C.R.S. 2008, a DIME physician’s opinions concerning MMI and permanent medical impairment are given presumptive effect. Leprino Foods Co. v. Industrial Claim Appeals Office 134 P.3d 475 (Colo.App. 2005). However, the opinion of the DIME physician is given “presumptive effect” only when the statute requires it and therefore a DIME physician’s determinations concerning the claimant’s ability to return to employment are not binding. See Cordova v. Indus. Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). Here the DIME physician’s opinion on work restrictions is not entitled to presumptive effect. Rather the ATP’s opinion is controlling under § 8-42-105(3)(c).
Finally, we have considered the claimant’s other contentions that to grant the ATP this authority over the claimant’s benefits is unjust, particularly in light of alleged ATP bias. However, we conclude that they present us with no grounds upon which the order of the ALJ may be set aside. The claimant’s relief in this regard, if any, lies with the legislature.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 23, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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ANTHONY DEJOY, PUEBLO, CO, (Claimant).
FARA, Attn: TIM WARD, C/O: ZURICH NORTH AMERICAN, HOUSTON, TX, (Insurer).
KONCILJA KONCILJA, PC, Attn: ROBERT BAUMBERGER, ESQ., C/O: THE ARCADA BUILDING, PUEBLO, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ROYCE W MUELLER, ESQ., DENVER, CO, (For Respondents).
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