W.C. No. 4-693-581.Industrial Claim Appeals Office.
July 8, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 13, 2008, that denied the claimant’s request for temporary total disability benefits (TTD) from the time he was released to return to regular work by his original authorized treating physician until a new authorized treating physician placed him under restrictions that prevented his return to work. We affirm.
The parties essentially submitted the case on the following stipulated facts. In August 2006, Dr. Malis and Dr. Greenslade were the claimant’s authorized treating physicians. Dr. Malis released the claimant to return to full duty work on August 30, 2006. The claimant would have testified that he did not return to work due to his physical limitations. The Final Admission of Liability dated September 15, 2006 indicated that the claimant was at maximum medical improvement (MMI) on August 30, 2006. Temporary total disability benefits were stopped as of August 29, 2006, based on the claimant’s release to return to full duty work and because the claimant was at MMI. Dr. DiNapoli performed a Division Independent Medical Exam (DIME) on January 15, 2007, and found the claimant was not at MMI. After the DIME, a change of physician to Dr. Finn was made by agreement of the parties, and he then became the authorized treating physician. Dr. Finn first treated the claimant on April 11, 2007, when he opined that the claimant was not at MMI. On May 1, 2007, the claimant was placed under restrictions that prevented his return to full duty work. Temporary total disability payments were resumed on May 3, 2007. In addition, the parties submitted medical reports and a transcript of a deposition taken of the DIME physician. Dr. Finn opined that he was not in the best position to determine whether or not the claimant should have had work restrictions as of August 30, 2006, when he was released to work by Dr. Malis.
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The ALJ found that Dr. Malis and Dr. Greenslade were treating the claimant when he was released to return to regular duty on August 30, 2006. There was no conflict of opinion between these two physicians regarding whether or not the claimant could return to regular duty. The ALJ determined that since Dr. Finn examined the claimant approximately eight months later, he was not in a position to determine the claimant’s restrictions and his condition as of August 30, 2006. The ALJ determined that the opinions of Dr. Malis and Dr. Greenslade should be given greater weight than the opinion of Dr. Finn on the issue of the claimant’s physical restrictions during the disputed period of time. The ALJ concluded that because Dr. Malis was the claimant’s authorized treating physician as of August 30, 2006 and because he released the claimant to return to regular work at that time, the claimant’s temporary total disability were properly terminated pursuant to § 8-43-105(3)(c) C.R.S, 2007. Therefore, the ALJ denied the claimant’s request for temporary total disability benefits between August 30, 2006, and May 2, 2007.
On appeal, the claimant concedes that the ALJ was correct in finding that benefits were properly terminated when Dr. Greenslade and Dr. Malis put him at MMI and released him to return to full duty work. However, the claimant argues that the subsequent medical reports from the DIME physician and Dr. Finn indicate that the original treating physicians were wrong in placing the claimant at MMI and were also wrong in releasing him to return to work prematurely. The claimant contends that these subsequent medical opinions make it clear that temporary total disability should be reinstated back to the date of termination of benefits.
Under the Workers’ Compensation Act, TTD “benefits shall continue until . . . [t]he attending physician gives the employee a written release to return to regular employment.” Section 8-42-105(3)(c) C.R.S. 2007. Whether a claimant has been released to return to work is a question of fact for the ALJ, whose determination is binding on review if it is supported by substantial evidence in the record. Imperial Headware, Inc. v. Industrial Claim Appeals Office, 15 P.3d 295, 296
(Colo.App. 2000);
See Lamah, Gabe’s Trucking, W.C. No. 4-677-528 (September 06, 2007) aff’d, Van Liner Ins. Co. v. Industrial Claim Appeals Office, (Colo.App. No. 07CA1789) (Colo.App. 2008) (not selected for publication).
Where there are no conflicting opinions from physicians regarding a claimant’s release to work, the ALJ is not at liberty to disregard the attending physician’s opinion that a claimant is released to return to employment. Burns Robinson Dairy, Inc., 911 P.2d 661, 662(Colo.App. 1995). However, if there is a conflict in the record regarding a claimant’s release to return to regular employment, the ALJ must resolve the conflict. Imperial Headware, 15 P.3d at 296. If the record contains conflicting opinions from
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multiple attending physicians concerning the claimant’s ability to perform regular employment, the ALJ may resolve the conflict as a matter of fact. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995).
It is not necessary that the various physicians issuing conflicting opinions concerning the claimant’s ability to work “were all contemporaneously attending physicians.” Bestway Concrete, 984 P.2d at 685. However, 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. 2007. To the extent that the opinions of Dr. Malis and Dr. Finn are in conflict, the ALJ resolved the conflict by giving greater weight to the opinion of Dr. Malis. Here the ALJ’s determination was supported by the stipulated facts and plausible interpretations of Dr. Finn’s testimony. Finn Depo. at 7,8,14,15. Therefore, we are not persuaded to disturb the ALJ’s order.
The claimant also contends that to affirm the ALJ’s order would vitiate the DIME process and would undermine the ability of the DIME physician to determine that a claimant requires additional medical treatment. We disagree.
The claimant’s need for additional medical treatment is not necessarily coincident with his ability to work. Section 8-42-107(8)(c), C.R.S. 2007, provides that a DIME physician’s opinions on the issues of MMI and medical impairment benefits are binding unless overcome by “clear and convincing evidence” to the contrary. However, the courts have repeatedly held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of MMI and medical impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002); Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001). See Sholund v. John Elway, W. C. No. 4-522-173 (October 22, 2004); aff’d Sholund v. Industrial Claim Appeals Office, No. 04CA1338 (Colo.App. July 7, 2005) (not selected for publication) (ALJ is not required to give the DIME physician’s rating “presumptive effect” on the question of whether the industrial injury is a significant causative factor in the claimant’s inability to earn wages). Accordingly, insofar as the claimant is arguing that the DIME doctor’s opinion should have been afforded additional weight on the issue of the claimant’s ability to work in August 2006, we reject that argument.
IT IS THEREFORE ORDERED that the ALJ’s order issued February 13, 2008 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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JERRY J LACLAY, COLORADO SPRINGS, CO, (Claimant)
TRAVELERS INSURANCE COMPANY, Attn: MARCHELLE ROBINSON, DENVER, CO, (Insurer) LAW OFFICES OF FRANKLIN D AZAR ASSOCIATES, P.C., Attn: JOHN M CONNELL, ESQ., AURORA, CO, (For Claimant)
LAW OFFICE OF HALL EVANS, LLC, Attn: DOUGLAS KOTAREK, ESQ., DENVER, CO, (For Respondents)
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