W.C. No. 4-288-201.Industrial Claim Appeals Office.
November 30, 1999.
ORDER.
The respondents seek review of a Supplemental Order of Administrative Law Judge Martinez (ALJ) which granted the claimant’s request for a change of physician pursuant to §8-43-404(5)(a), C.R.S. 1999. We dismiss the petition to review without prejudice.
In this case, the claimant requested a “change of physician” to Dr. Pino. The respondent defended on the ground that the claimant was determined to be at maximum medical improvement (MMI) by an authorized treating physician, and therefore, a change of physician was inappropriate. However, at the conclusion of the hearing the respondents conceded that Dr. Pino was already a “treating physician.” (Tr. p. 31).
In the Supplemental Order the ALJ determined claimant was not at MMI and ordered that Dr. Pino be “designated the claimant’s authorized treating physician.” The ALJ expressly reserved all other issues not resolved by the order.
Section 8-43-301(2), C.R.S. 1999, provides that a party dissatisfied “with an order which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty may of file a petition to review.” Orders which neither award nor deny benefits are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
We have previously determined that an order granting a change of physician, in the absence of an order awarding specific medical benefits, is not final and reviewable. We concluded that such an order merely determines that a physician is authorized to treat the claimant, but authorization itself is not a “medical benefit.”Fernandez v. City and County of Denver, W.C. No. 4-122-784
(February 7, 1996). The rationale for this holding is that a finding that a physician is authorized to treat the claimant is distinct from a determination that particular treatment is reasonable and necessary. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
The ALJ’s order does not award or deny any specific medical treatment from Dr. Pino and no specific treatment was requested. Therefore the order is not a “final order” within the meaning §8-43-301(2).
It is true the ALJ’s determination that the claimant is not at MMI may affect the claimant’s entitlement to other benefits. However, the ALJ’s order does not address the claimant’s entitlement to other benefits, and expressly reserves determination of such issues. Therefore, the order is interlocutory and not currently subject to review.
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s Supplemental Order dated July 1, 1999, is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE An action to modify or vacate this Order may be commenced inthe Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for writ of certiorari with the court,with service of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty (20) daysafter the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1999 Cum. Supp.)
Copies of this decision were mailed November 30, 1999 to the following parties:
Diana L. Garner, 440 County Road 232, #4, Durango, CO 81301.
Town of Ignacio, Attn: Yolanda Duran, P.O. Box 459, Ignacio, CO 81137.
Colorado Intergovernmental Risk Sharing Agency, Attn: Marla Myers, 950 S. Cherry St., #800, Denver, CO 80222.
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant).
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents).
BY A. Pendroy
IN RE GONZALES-JAMAICA, W.C. No. 4-328-354 (11/09/99) IN THE MATTER OF THE CLAIM OF RITA GONZALES-JAMAICA, Claimant, v. NEOPLAN USA CORPORATION, Employer, and INSURANCE COMPANY OF NORTH AMERICA, Insurer, Respondents. W.C. No. 4-328-354. INDUSTRIAL CLAIM APPEALS OFFICE. November 9, 1999.
FINAL ORDER.
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied her claim for temporary total disability benefits. Relying on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the claimant argues that her separation from the respondent-employer was caused by the industrial injury, and that her subsequent wage loss was to some degree the result of the injury. Because we conclude that the ALJ’s findings of fact compel the conclusion that the claimant was not “disabled” during the disputed period of time, we affirm the denial of benefits.
On February 22, 1996, the claimant sustained an admitted injury to her right shoulder while performing her regular employment as a bus cleaner. Nevertheless, the claimant remained employed in the same position until June 1997, when she resigned. Following the resignation the claimant accepted a position as a property manager at Normandy Gardens. The claimant remained at Normandy Gardens until she was discharged on December 31, 1997. The controversy in this case concerns claimant’s entitlement to temporary total disability benefits commencing January 1, 1998.
The claimant testified that following the 1996 injury she was unable to perform all of the functions of a bus cleaner and relied on coemployees to assist her in lifting and overhead activities. (Tr. pp. 6-7). The claimant further testified that her decision to quit her job as a bus cleaner and accept work with Normandy Gardens was influenced by the fact that the property management job did not require her to lift with her right arm. (Tr. p. 24).
The claimant further testified that on November 5, 1997, her treating physician imposed restrictions against overhead activity and lifting more than five pounds. When the claimant revealed the restrictions to her supervisors at Normandy Gardens she was discharged for inability to perform the duties of employment, and was subsequently unable to locate employment within her restrictions. (Tr. p. 9).
However, the ALJ discredited the claimant’s testimony that she was unable to perform the regular duties of her employment as a bus cleaner, and that the injury influenced the claimant’s decision to quit work with the respondent-employer and accept work as a property manager. (Findings of Fact 5, 6, 7). Instead, the ALJ found the claimant lost no time from work from 1996 through 1997, and quit her job as a bus cleaner because the property management job offered better wages and working conditions. The ALJ also found that from February 1996 through June 1997, the claimant sought only “minimal medical care.” Finally, the ALJ assigned “significant evidentiary weight” to the fact that the treating physician issued a report releasing the claimant to full duties without restriction on November 11, 1997.
Under these circumstances, the ALJ concluded that the claim for temporary benefits is “substantially controlled” by PDM Molding, Inc. v. Stanberg, supra. Specifically, the ALJ stated that the claimant failed to meet her burden of proof to show that her “lost time for employment after January 1, 1998 was to any degree the result” of the 1996 injury. (Finding of Fact 11). The ALJ also stated that PDM Molding stands for the proposition that “where a worker has returned to work, post-injury, and there was not a loss of wages for a period of time following the injury, that the burden of proof would then be on the claimant to demonstrate that any subsequent loss of wages was related to some degree to the original injury.”
On review, the claimant contends the ALJ misapplied PDM Molding to the facts of this case. Specifically, the claimant contends the ALJ “ignored” evidence that her decision to quit work as a bus cleaner was caused by the effects of the industrial injury. Thus, in effect, the claimant argues that she was not “at fault” for the loss of her employment with the respondent-employer. The claimant also contends the evidence establishes that to some degree her wage loss commencing January 1, 1998, was the result of restrictions caused by the 1996 injury. In support of this proposition, the claimant cites her own testimony, as well as evidence of the restrictions imposed by the treating physician on November 5, 1997. However, because we conclude that the ALJ’s findings of fact establish the claimant failed to carry her initial burden to establish “disability” caused by the industrial injury, we affirm the order.
The claimant bears the initial burden of proof to establish that the industrial injury “caused disability” sufficient to award temporary disability benefits. PDM Molding Inc. v. Stanberg, supra; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). The term “disability”, as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by the claimant’s inability to “resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641, 649 (Colo. 1999). The impairment of earning capacity element of “disability” may be evidenced by a complete inability to work, or by restrictions which impair the claimant’s ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
As we have previously held, the question of whether the claimant has proven the existence of restrictions comprising the “medical incapacity” element of disability is one of fact for determination by the ALJ. In making this determination the ALJ is not restricted to considering medical evidence, nor is she required to give any special weight to the opinions of the treating physician. Lymburn v. Symbios Logic, supra; Davisson v. Rocky Mountain Safety, Inc., supra; Meagher v. City County of Denver, W.C. No. 4-274-962 (May 21, 1998). Similarly, the question of whether the medical restrictions actually impair the claimant’s ability to perform her regular employment is one of fact for the ALJ. Davisson v. Rocky Mountain Safety, Inc., supra; Ziel v. Eastman Kodak Co., W.C. No. 4-313-166 (June 12, 1998).
Because these issues are factual in nature, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As we understand the ALJ’s order, she has found the claimant failed to prove that, as of January 1, 1998, she was suffering any disability caused by the industrial injury. Further, the ALJ determined that even if the claimant proved some disability resulting from the industrial injury, her voluntary separation from the respondent-employer would preclude the claimant from receiving benefits under the principles announced in PDM Molding.
The ALJ discredited the claimant’s testimony that any medical restrictions caused by the industrial injury precluded the claimant from performing the regular duties of her employment as a bus cleaner. Further, the ALJ found that difficulties with the claimant’s arm were not the reason for the claimant’s resignation as a bus cleaner and acceptance of the job as a property manager. The claimant’s assertions notwithstanding, these findings are fully supported by employer documents concerning the separation from employment, and the claimant’s uninterrupted employment from February 1996 through June 1997. Although the treating physician purportedly imposed medical restrictions on November 5, 1997, and again in April 1998, he also reported the claimant could return to regular employment on November 11, 1997. The ALJ resolved this conflict by crediting the November 11 report.
Under these circumstances, the record supports the ALJ’s determination that, by January 1, 1998, the claimant was under no medical restrictions, nor did any restrictions impair her ability to perform the regular duties of her pre-injury employment. Thus, the ALJ’s findings compel the conclusion that the claimant failed to prove she was “disabled” by the 1996 injury. Although the record might support contrary findings and conclusions, we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from the record.
In light of this determination, we need not address the claimant’s remaining arguments concerning whether or not the ALJ correctly applied PDM Molding.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 3, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed November 9, 1999 to the following parties:
Rita Gonzales-Jamaica, 103 S. 10th St., Lamar, CO 81052.
Neoplan USA Corporation, 700 Auwaerter Dr., Lamar, CO 81052-2252.
Insurance Company of North America, — CIGNA, P.O. Box 2941, Greenwood Village, CO 80150-0141.
Darla Scranton Specht, Esq., 1204 E. Olive, P.O. Box 1500, Lamar, CO 81052 (For Claimant).
W. Berkeley Mann, Jr., Esq., and Alison F. Kyles, Esq., 4582 S. Ulster St., #906, Denver, CO 80237.
J. Anthony Ogden, Esq., 625 E. 16th Ave., Denver, CO 80203 (For Respondents).
BY: A. Pendroy