W.C. No. 4-261-581Industrial Claim Appeals Office.
July 2, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which denied the claim for temporary total disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable groin injury on May 30, 1995. On June 5, 1995, the employer referred the claimant to Dr. Byrne who provided treatment and prescribed physical therapy. Dr. Byrne also placed the claimant under restrictions which prohibited him from performing his regular employment driving a “recycle route.” As of June 5, the employer provided light duty employment as a dispatcher.
On Friday, June 9, 1995, the claimant was again examined by Dr. Byrne. Later that day, Dr. Byrne advised the employer that the claimant was unable to return to work until an examination scheduled for Tuesday, June 13, 1995.
However, the claimant did not appear for the June 13 examination, or for an examination scheduled on June 20, 1995. In fact, the claimant telephoned the employer on June 19 and stated that he was terminating his employment and did not intend to keep the medical appointment scheduled for June 20.
Thereafter, the claimant did not obtain any medical treatment until July 24, 1995, when he was seen at Evans Army Hospital. Although the claimant was not given any restrictions on June 24, he was again seen on August 3, 1995, and restricted to lifting no more than five pounds, and prohibited from running or jumping.
Under these circumstances, the ALJ denied the claim for temporary total disability benefits commencing June 10, 1995. The ALJ determined that the claimant missed only one day of regular employment (June 12, 1995) before Dr. Byrne released him to regular employment on June 13, 1995. The ALJ observed that “Dr. Byrne might have continued the Claimant off work” if the claimant had appeared for the June 13 appointment, but the “only indication is that the Claimant had a regular-duty release as of that time.” Consequently, the ALJ concluded that the provisions of §8-42-105(3), C.R.S. (1995 Cum. Supp.), are not applicable to this claim because the respondents “properly filed a medical only” admission of liability.
Additionally, the ALJ determined that the claimant voluntarily quit his job with the respondent-employer, and that this was the cause of the claimant’s subsequent wage loss. Thus, the ALJ concluded that the claimant was not entitled to temporary total disability benefits.
On review, the claimant contends that the evidence does not support the ALJ’s finding that the claimant was released to regular employment as of June 13, 1995. The claimant relies on § 8-42-105(3)(c), C.R.S. (1995 Cum. Supp.), for the proposition that only the authorized treating physician may determine when the claimant is capable of performing regular employment. In this case, the claimant asserts that the ALJ substituted his opinion for that of the treating physician concerning the claimant’s ability to perform regular employment on June 13. We reject this argument.
The opinion of the attending physician concerning the claimant’s ability to perform regular employment is binding on the ALJ. This is true because § 8-42-105(3)(c) “is part of a statutory scheme designed to limit the scope and frequency of disputes concerning the duration of temporary total disability benefits.” McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Thus, unless the evidence proves that the attending physician restricted the claimant from performing regular employment, temporary disability benefits need not be paid. Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff’d., Ray v. Industrial Claim Appeals Office, (Colo.App. 95CA0553, July 27, 1995) (not selected for publication).
Moreover, as the ALJ held, no temporary total disability benefits are payable unless the claimant proves that the injury has caused him to miss more than three regular working days. Section 8-42-105(1), C.R.S. (1995 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Thus, if the claimant fails to establish that the attending physician has restricted him from regular employment for at least three days, he has not established a right to temporary total disability benefits.
The claimant’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding that Dr. Byrne did not restrict the claimant for more than three regular working days. Dr. Byrne’s report of June 28, 1995, states the claimant was “unable to return to regular work until” June 13, 1995. This report provides ample support for the finding that Dr. Byrne was of the opinion that the claimant was physically able to return to his regular job on June 13, 1995. Since the claimant last worked on Friday, June 9, the ALJ correctly found that the claimant only missed one full day of regular employment on June 12.
We do not agree with the claimant that the ALJ attempted to substitute his judgment for that of Dr. Bryne concerning the claimant’s ability to perform regular employment. The ALJ merely interpreted the evidence before him and found that it was Dr. Bryne’s opinion that the claimant was able to return to work on June 13. It is true that some evidence in the record, including the June 28 report, might support a contrary inference. However, we may not substitute our judgment for that of the ALJ concerning the proper inferences to be drawn from Dr. Bryne’s June 28 report. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
It is true that the ALJ stated that Dr. Bryne “might have continued the Claimant off work” if Dr. Byrne had been able to examine the claimant on June 13. However, the ALJ merely determined that he was unpersuaded by this possibility in light of the express contents of the June 28 report.
The evidence supports the ALJ’s determination that the claimant failed to prove entitlement to temporary total disability benefits because he failed to show that the Dr. Byrne restricted him for more than three regular days of work. Under these circumstances, we need not consider the claimant’s second argument concerning the ability of an “unauthorized doctor” to determine the claimant’s date of maximum medical improvement. Since the claimant failed to make a threshold showing of entitlement to temporary total disability benefits, we need not speculate about the circumstances which would justify a termination of such benefits. PDM Molding, Inc. v. Stanberg, supra; Burns v. Robinson Dairy Inc., supra (maximum medical improvement is not a prerequisite to termination of temporary disability benefits when the attending physician has released the claimant to regular employment).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 27, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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. (1995 Cum.Supp.).
Copies of this decision were mailed July 2, 1996 to the following parties:
Joe W. Hix, 602 Autumn Pl., Colorado Springs, CO 80817
Waste Management of Colorado Springs, 80 Chambers St., Colorado Springs, CO 80907-5220
Continental Casualty Insurance Company, Pam DeSantis, CNA Insurance Companies, P. O. Box 17369, T.A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Tama L. Levine, Esq., Security Life Center, 1290 Broadway, #708, Denver, CO 80203 (For Respondents)
By: _____________________