W.C. No. 4-131-868Industrial Claim Appeals Office.
September 23, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary disability benefits and granted the claimant’s request for a change in the treating physician. We affirm the award of temporary disability benefits and dismiss without prejudice with respect to the change in physicians.
This matter was before us previously. In our order dated April 3, 2002, we affirmed the ALJ’s prior determination that the claimant proved a change of condition sufficient to warrant reopening. However, we remanded the matter for specific findings to determine whether the claimant proved entitlement to temporary disability benefits under City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997), and whether the claimant made a sufficient showing to justify a change in the treating physician. Our order contains a statement of the facts, and that statement is incorporated herein.
Pursuant to our order, the ALJ entered findings of fact and conclusions of law on May 24, 2002. The ALJ found that when the claimant was placed at maximum medical improvement (MMI) in July 1996, she was restricted to lifting 25 pounds occasionally and 10 pounds frequently, but had no restrictions on sitting, standing, or walking. Further, the claimant was permitted to drive and operate machinery. From this evidence the ALJ inferred the claimant retained some earning capacity after being placed at MMI. However, the ALJ found that when the claimant underwent back surgery on September 19, 1997, she became totally disabled. Consequently, the ALJ awarded temporary total disability benefits commencing September 19.
The ALJ also found the claimant made a proper showing for a change of physician under § 8-43-404(5)(a), C.R.S. 2001, because the claimant established a therapeutic relationship with Dr. Burks that “will likely assist in [the claimant’s] recovery.” Thus, the ALJ deemed Dr. Burks an authorized treating physician effective July 3, 2001, the date of the ALJ’s prior order.
I.
On review the respondents contend there is no evidence to support the ALJ’s finding that the claimant retained any earning capacity after she reached MMI in 1996. In support the respondents point to the absence of any vocational evidence and the claimant’s failure to seek employment after reaching MMI. We are not persuaded.
The existence of and extent of disability have always been issues of fact for determination by the ALJ, and there has never been any requirement for expert opinion on these matters. See American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. 1995).
Here, the ALJ’s findings concerning the extent of the claimant’s restrictions prior to the worsening of condition are fully supported by the report of Dr. Primack dated April 23, 1996, and the report of Dr. Lockwood dated July 18, 1996. Significantly, neither of these physicians absolutely prohibited the claimant from returning to work. Further, as the ALJ found, the claimant was not restricted from sitting, walking, standing or driving. In our view, the ALJ plausibly inferred from these circumstances that the claimant retained some earning capacity which would have enabled her to obtain work had she elected to look for it. The claimant was not required to produce expert opinion on the issue, and the failure to do so is not fatal to the claim for temporary disability benefits. It follows that substantial evidence supports the award of temporary disability benefits when the claimant became totally disabled on September 19, 1997. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
II.
The respondents next contend the ALJ erred in determining the claimant proved grounds for a change in the authorized treating physician. However, we have previously held that an order authorizing a change in the treating physician without determining liability for specific treatment is not final and reviewable under § 8-43-301(2), C.R.S. 2001. Such an order merely determines authorization to treat without awarding or denying benefits. Garner v. Town of Ignacio,
W.C. No. 4-288-201 (November 30, 1999).
Here, the ALJ’s order determines that Dr. Burks is authorized commencing July 3, 2001. However, there is no award for specific treatment after that date, nor was such an issue considered. Hence, the ALJ’s order is interlocutory and not currently reviewable on the issue of change of physicians.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 24, 2002, is affirmed insofar as it awarded temporary disability benefits commencing September 19, 1997.
IT IS FURTHER ORDERED that the respondents’ petition to review the order is dismissed without prejudice on the issue of change of physicians.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain _______________________________ Kathy E. Dean
NOTICE
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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 23, 2002 to the following parties:
Camille Falco, 900 S. Walden Way, #205, Aurora, CO. 80017
Wendy’s International Inc., P. O. Box 182523, Columbus, OH. 43218-2523
Trudy Spratta, American Manufacturers Mutual, P. O. Box 5347, Denver, CO. 80217
James A. May, Esq., 155 S. Madison, #330, Denver, CO. 80209 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st Floor, Denver, CO. 80202 (For Respondents)
By: A. Hurtado