W.C. No. 3-114-636Industrial Claim Appeals Office.
May 8, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant temporary total disability benefits commencing April 11, 1994, the date he quit his employment. We affirm.
This matter was before us previously. In an “Order of Remand” dated September 26, 1995, we set aside the ALJ’s prior order denying the claim for temporary total disability benefits, and remanded the case for entry of a new order. The ALJ’s prior order was based upon his determination that the claimant “voluntarily quit” his employment and was not disabled from performing his regular job at the time of the termination.
Our order of remand directed the ALJ to determine whether Dr. Hansen was the claimant’s “attending physician” for purposes of § 8-42-105(3)(c). We stated that, if the ALJ found that Dr. Hansen was the attending physician, the ALJ was not free to disregard Dr. Hansen’s opinion concerning the claimant’s inability to perform his regular employment at the time of the termination. We also directed the ALJ to reconsider his decision in light of the supreme court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
On remand, the ALJ determined that Dr. Hansen was the claimant’s “attending physician” for purposes of § 8-42-105(3)(c). In support of this conclusion, the ALJ found that the record did not indicate that the respondents ever designated a physician to treat the claimant’s injury. Further, the ALJ stated that after the hearing of March 14, 1995 the “respondents requested that claimant treat with Dr. Hansen.” Moreover, the ALJ found that in a report dated May 19, 1994, Dr. Hansen stated that the claimant cannot perform “any strenuous exertion,” and restricted the claimant to the performance of “light duty.”
The ALJ also found that the claimant’s separation from employment was caused by the respondent-employer’s “refusal to offer” modified employment in a “low dust position.” Consequently, the ALJ stated that the claimant’s “loss of employment” was “to some degree” caused by the “effects of his injury.”
I.
On review, the respondents first contend that their post-hearing agreement to allow Dr. Hansen to serve as the claimant’s authorized treating physician does not mean that Dr. Hansen was the “attending” physician for purposes of § 8-42-105(3)(c). Indeed, the respondents argue that Dr. Hansen was not yet an authorized physician on May 19, 1994 when he imposed restrictions on the claimant. Rather, the respondents assert that Dr. Bloink was the attending physician. We are not persuaded by these arguments.
The respondents’ arguments notwithstanding, the evidence shows that the claimant’s initial visits to Dr. Bloink and Dr. Hansen were connected with testing pursuant to federal regulations for miners. (Tr. pp. 20-21; Report of Dr. Bloink, May 17, 1994). Under these circumstances, the ALJ could reasonably conclude that the claimant had no attending physician for his workers’ compensation claim until the respondents agreed to authorize Dr. Hansen after the hearing. The mere fact that Dr. Hansen expressed his opinion concerning the claimant’s restrictions prior to becoming the “attending physician” does not, under these circumstances, invalidate his opinion concerning the claimant’s restrictions. Cf. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (claimant may obtain change in authorized treating physician prior to time primary physician determines maximum medical improvement).
It follows that the ALJ was not required to find that Dr. Bloink was the attending physician. However, even if Dr. Bloink was an attending physician, the fact that Dr. Hansen later became an attending physician merely presented a potential conflict in the evidence which the ALJ was free to resolve. See Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995).
II.
The respondents’ next argument is that Dr. Hansen’s restriction to “light duty” is not sufficient to establish that the claimant was restricted from performing his regular duties as a “buggy operator” in the mine. We reject this argument.
Needless to say, the ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Thus, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
Here, there is substantial evidence to support the conclusion that Dr. Hansen restricted the claimant from returning to work in his regular employment. The records of Dr. Hansen indicate that he was aware that the claimant was a “buggy driver” in a mine and that the claimant experienced wheezing with exertion. The records further indicate that Dr. Hansen was aware that the claimant “quit his job because of shortness of breath.” This evidence, taken with the claimant’s testimony concerning the nature of his employment, fully supports the ALJ’s conclusion that Dr. Hansen restricted the claimant from performing his regular duties as a buggy operator.
It is true that the ALJ found, in the March 29, 1995 order, that the claimant believed “that he is physically capable of returning to his former position as a buggy driver.” However, the claimant’s “beliefs” concerning his physical ability to perform regular employment are not the pertinent issue under § 8-42-105(3)(c). Burns v. Robinson Dairy, supra ( “any evidence concerning claimant’s self-evaluation of his ability to perform his job was irrelevant and properly disregarded by the ALJ”). Rather, it is the opinion of the attending physician which is determinative.
III.
The respondents next contend that the ALJ erred in finding that the claimant quit his employment because of the respondent-employer’s refusal “to offer such modified employment.” In support of this argument, the respondents point out that the ALJ found in the March 29, 1995 order that “Brad Gosche was willing to accommodate the Claimant’s apparent need to be placed in a low dust area.”
However, the ALJ also found that, on April 12, 1994, “Mr. Deluzio informed Claimant that Claimant would be assigned to his previous position as buggy operator upon his return the following day.” At that point, the claimant “refused to accept that position and voluntarily quit.”
Reading the ALJ’s findings in their entirety, the ALJ found that the employer intended to offer the claimant work within his restrictions upon its receipt of formal notice under federal regulations of the claimant’s election to “exercise his option to be placed in a low dust area.” Thus, there is ample evidence to support the ALJ’s determination that as of the date the claimant quit his employment the employer had declined to place him in a low dust environment.
IV.
The respondents’ final argument is that the ALJ erred in his application of PDM Molding, Inc. v. Stanberg, supra. The respondents first argue that the principles announced in PDM are not applicable when the claimant “voluntarily” quits. The respondents also assert that there is no evidence that the claimant looked for any work after separation. We reject these arguments.
We have previously rejected the argument that PDM does not apply in cases where the claimant voluntarily quits employment. For instance, i DeBias v. McCool’s Custom Painting, W.C. No. 4-198-955, October 10, 1995, we stated the following:
“We do not understand PDM Molding Co., Inc.
as justifying a distinction between injured employees who lose employment due to their own `fault’ and employees who `voluntarily’ quit post-injury employment. In either case, the post-separation wage loss is, in the first instance, the result of the claimant’s own conduct. Further, subsequent wage loss may or may not be related to restrictions caused by the industrial injury.”
We decline to depart from our prior ruling on this issue.
Further, we reject the argument that there is insufficient evidence that the claimant’s subsequent wage loss was causally connected to the industrial injury. Here, as in Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 95CA0438, November 9, 1995), there is evidence that the claimant’s decision to leave his employment was, in part, related to the fact that he had restrictions associated with his injury. In any event, there was evidence that the claimant was unsuccessful in finding sustained post-separation employment, and the ALJ could logically infer that the claimant’s inability to find work was “to some degree” the result of his restrictions. (Tr. pp. 33-34).
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. (1990 Cum.Supp.).
Copies of this decision were mailed May 8, 1996 to the following parties:
Donald D. Gonzales, P.O. Box 574, Mancos, CO 81328
National King Coal, Inc., P.O. Box 2905, Durango, CO 81302-2905
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
Scot J. Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________