W.C. No. 3-114-636Industrial Claim Appeals Office.
September 26, 1995
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied his claim for temporary total disability benefits commencing April 12, 1994. We set the order aside and remand for entry of a new order.
The ALJ’s findings of fact may be summarized as follows. Between February 7, 1994 and April 8, 1994, the claimant was off work due to an industrial injury unrelated to this claim. By April 8, the prior injury no longer impaired the claimant’s ability to perform his usual duties as a “buggy operator” in a coal mine.
However, on April 7, 1994, the claimant received a letter from the United States Department of Labor informing him that x-rays revealed that he had pneumoconiosis (“black lung disease”) and was legally entitled to be assigned to a “low dust area” in the mine. A low dust area was defined as a location where “the concentration of dust is not more than 1.0 milligram per cubic meter of air.”
On April 8, the claimant met with two representatives of the employer (National) to discuss the letter. The ALJ found that, during this meeting, the parties examined test results indicating that “almost all of the mine was at or near the one milligram per cubic meter level,” and National indicated its willingness to accommodate the claimant’s need to be placed in a low dust area. However, because the meeting became hostile, the claimant was given until April 12, 1994 to find a new job, or return to work with National.
On April 12, the claimant contacted National and inquired whether he would be assigned to his previous position as an underground buggy operator. National advised the claimant that he would be assigned to his previous position, and the claimant “voluntarily quit.” The ALJ apparently found that National’s unwillingness to reassign the claimant to a new position was based on its discovery that no “reassignment” was required until National was formally notified by the government that the claimant had elected reassignment.
The ALJ further found that the claimant was examined by Dr. Bloink on May 17, 1994 “for a physical exam.” Dr. Bloink stated that the claimant’s physical activities should not be “markedly limited” provided he works in a “fairly dust free environment.” The claimant was then examined by Dr. Hansen on May 19, 1994. Dr. Hansen restricted the claimant to “light duty” as a result of the lung disease. Dr. Hansen also stated that he doubted that the claimant could “perform any strenuous exertion.”
The claimant sought temporary total disability benefits from April 12, the day he quit his employment at National. The ALJ found that the claimant suffered a compensable occupational disease. However, the ALJ rejected the claim for temporary disability benefits, finding that there was “no medical evidence which establishes that Claimant is prevented from working in an underground coal mine as a buggy driver or in some other position.” In reaching this conclusion, the ALJ rejected Dr. Hansen’s May 19 opinion because he found it “inconsistent” with the claimant’s testimony that he worked as a carpenter, and with Dr. Bloink’s opinion that the claimant’s physical activities “are not markedly limited.” The ALJ also stated that the letter from the Department of Labor was not “tantamount” to a determination that the claimant was disabled. The ALJ found that the letter would have allowed the claimant to remain in his previous position or switch to another area which met the one milligram per cubic meter requirement.
Finally, the ALJ stated that temporary total disability benefits are not owed if the claimant’s wage loss is attributable to “voluntary quitting.” The ALJ apparently concluded that the claimant’s “voluntary” resignation from National precluded receipt of subsequent temporary disability benefits.
I.
On review, the claimant contends that the ALJ erred in determining that “no medical evidence” supports a finding of temporary disability as of April 12, 1994. In support of this argument, the claimant contends that he was disabled if the effects of his occupational disease precluded him from performing his regular job duties. The claimant goes on to reason that the letter from the Department of Labor, as well as the opinions of Dr. Bloink and Dr. Hansen, support the conclusion that he was temporarily disabled under this standard. The respondents counter the claimant’s argument by asserting that a finding of disability is a question of fact, and substantial evidence supports the ALJ’s order. Because it appears the ALJ may have applied an incorrect legal standard in assessing the evidence, we remand the matter for entry of a new order.
Generally, the claimant is correct in stating that an injured worker is “disabled” for purposes of temporary disability benefits if the injury precludes the claimant from performing his “usual duties.” See PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Colo.App. 1995); McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Furthermore, once the claimant establishes a physical inability to perform the duties of his regular employment, temporary disability benefits are measured by the degree of the wage loss, not the degree of the claimant’s physical impairment or his willingness to seek other employment. PDM Molding Co., Inc. v. Standberg, supra.
Under § 8-42-105(3)(c), C.R.S. (1995 Cum. Supp.), temporary total disability is to continue until the “attending physician gives the employee a written release to return to regular employment.” This provision is designed to limit the scope and frequency of disputes concerning temporary total disability benefits. McKinley v. Bronco Billy’s, supra; Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). The statute accomplishes this result by establishing that the opinion of the attending physician concerning the claimant’s ability to perform regular or modified employment is binding on the parties and the ALJ. Burns v. Robinson Dairy, Inc., supra; White v. TV Communications Network, Inc., W.C. No. 4-157-203, November 24, 1993; see also, Herrera v. Thompson School district, W.C. No. 4-114-576, May 18, 1994 (for purposes of § 8-42-105(3)(b), “modified employment” means employment within restrictions imposed by the treating physician).
Here, the ALJ’s order implies that Dr. Hansen’s opinion might support the conclusion that the claimant was medically restricted from performing his regular duties as a “buggy operator” as of April 12, 1994, but the ALJ rejected this opinion. However, the ALJ failed to determine whether Dr. Hansen was the claimant’s “attending physician” for purposes of treating the claimant’s occupational disease. Moreover, our review of the record indicates that there is evidence which would support a determination that Dr. Hansen was the claimant’s “attending physician” for purposes of §8-42-105(3)(c). Specifically, there is evidence that National did not designate a treating physician when notified of the injury, and the claimant selected Dr. Hansen as his physician. See § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.); Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987); Jones v. Adolph Coors Co., 689 P.2d 681
(Colo.App. 1984).
On remand, the ALJ must first determine whether Dr. Hansen was the claimant’s “attending physician” for purposes of § 8-42-105(3)(c). In the event the ALJ determines that Dr. Hansen was the attending physician, the ALJ must consider himself bound by Dr. Hansen’s opinion concerning the claimant’s ability to perform his regular employment. Put another way, the ALJ may not, as he did in the March 29 order, substitute his judgment for that of the attending physician with respect to the claimant’s ability to perform regular employment.
In light of this disposition, we need not now consider claimant’s other arguments concerning the burden of proof and the weight to be assigned the evidence.
II.
The claimant also disputes the ALJ’s determination that his “voluntary” separation from employment on April 12 automatically disqualifies him from the receipt of temporary total disability benefits. We agree.
Subsequent to the ALJ’s order in this case, our Supreme Court issued the decision in PDM Molding Co., Inc. v. Standberg, supra. The court held that a separation for “fault” does not automatically disqualify a claimant from receiving subsequent temporary total disability benefits. Rather, the question is whether the claimant’s post-separation wage loss is, “to some degree,” attributable to the effects of the industrial injury.
Here, there was evidence that the claimant looked for work following his separation from National. Thus, there is evidence from which the ALJ could find that the claimant’s post-separation wage loss was, to some degree, attributable to the effects of the occupational disease. On remand, the ALJ shall enter findings and conclusions in accordance with principles established in PDM Molding.
IT IS THEREFORE ORDERED that the ALJ’s order, dated March 29, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed September 26, 1995 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: ________________________