W.C. No. 4-322-733Industrial Claim Appeals Office.
June 22, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary disability benefits from January 1 through October 27, 1997. We affirm.
On April 17, 1996, the claimant suffered a compensable injury. Following the injury the employer provided light duty employment until June 7, 1996, when the employer relocated its facilities. The claimant received unemployment benefits until January 1, 1997. Between July 1997 and September 1997 the claimant worked as a salesperson for Enexx Propane.
The respondent terminated temporary disability benefits September 25, 1996, pursuant to Dr. Gaba’s determination of maximum medical improvement (MMI). Dr. Tyler conducted a Division-sponsored independent medical examination (IME) on April 16, 1997, and determined the claimant was not at MMI.
On May 1, 1997, the respondents made a written request that the claimant submit to an examination by Dr. Pak. The claimant objected and refused to attend the appointment. On August 5, 1997, the claimant’s attorney notified the respondent that the claimant was willing to submit to examination by Dr. Pak. No appointment was rescheduled. Instead, the parties agreed that the claimant would undergo an examination by Dr. Gordon.
Relying on the IME, the claimant applied for a hearing and requested temporary total disability benefits commencing January 1, 1997. The respondents objected on grounds that the claimant was at MMI until April 15, 1997, that the claimant had refused to submit to the examination with Dr. Pak, and that the claimant returned to regular employment.
The ALJ rejected the respondents’ arguments. The ALJ also determined the claimant is medically restricted from performing his regular employment. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits from January 1 through October 27, 1997, the date the respondents voluntarily reinstated benefits.
On review, the respondents renew the arguments which were previously considered and rejected by the ALJ. We agree with the ALJ’s reasoning, and therefore, we perceive no basis to disturb the award.
I.
Temporary disability benefits are payable if the industrial injury causes a disability lasting over three days or three work shifts, the claimant leaves work as a result of the disability, and the claimant suffers an actual wage loss. Section 8-42-103(1)(b), C.R.S. 1998. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Temporary disability benefits terminate in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1998. See Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Subsection 8-42-105(3)(a) terminates temporary disability benefits when the claimant reaches MMI.
The determination of MMI is governed by § 8-42-107(8)(b)(I) and (II), C.R.S. 1998, which provides that the initial determination of MMI is to be made by an authorized treating physician, and if either party disputes the accuracy of that determination, the claimant must undergo an independent medical examination. The IME physician’s determination concerning the accuracy of the treating physician’s opinion is binding unless overcome by “clear and convincing evidence.” However, where the IME physician’s opinion is ambiguous, determination of the IME physician’s opinion is a question of fact for resolution by the ALJ under the preponderance of evidence standard. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Contrary to the respondents’ contention, the IME physician, Dr. Tyler, did not opine that the claimant was at MMI until April 15, 1997. Dr. Tyler stated: “I disagree at this time that Mr. Michael Marshall is at maximal medical improvement.” He added
“I am not stating though by this statement that he has not in the past been at maximal medical improvement but can only state categorically that at this time he is not.”
However, on the “IME Examiner’s Information Sheet” Dr. Tyler answered “NO” to the question of whether he agreed with the “treating physician’s date of MMI.” Consequently, Dr. Tyler’s report is subject to conflicting inferences concerning the claimant’s MMI status prior to April 16, 1997. The ALJ resolved the conflict by finding that Dr. Tyler did not determine the claimant to be at MMI prior to April 16, 1997. The ALJ’s finding is consistent with the claimant’s testimony that he had ongoing problems with his right arm and shoulder since September 26, 1996.
Moreover, the claimant did not seek to overcome Dr. Tyler’s opinion that he was not at MMI. Consequently, the ALJ did not err in failing to require the claimant to overcome Dr. Tyler’s opinion by “clear and convincing” evidence.
II.
Next, we perceive no reversible error in the ALJ’s failure to terminate temporary disability benefits effective July 1997, by operation of § 8-42-105(3)(b), C.R.S. 1998. Section 8-42-105(3)(b) terminates temporary disability benefits when the claimant returns to “modified or regular employment.” However, where the claimant returns to modified employment at less than his pre-injury rate of pay, the claimant is entitled to temporary partial disability benefits equal to sixty-six and two-thirds of the difference between the average weekly wage at the time of the injury and the average weekly wage during the temporary disability. Section 8-42-106 C.R.S. (1995 Cum. Supp.) [amended in 1996]; University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994).
In view of the ALJ’s finding that the claimant was not at MMI as of January 1, 1997, the claimant’s medical restrictions after January 1, 1997, if any, were again “temporary.” Thus, the claimant was entitled to temporary disability benefits insofar as his wage loss was to some degree the result of the temporary restrictions. PDM Molding, Inc. v. Stanberg, supra.
The ALJ found that the claimant had not made any sales and earned no wages in his work as a commission salesman for Enexx Propane, and that it therefore did not constitute a return to “regular employment” for purposes of terminating temporary disability benefits under § 8-42-105(3)(b), C.R.S. 1998. Even assuming it did constitute employment, the ALJ determined that the claimant is entitled to temporary partial disability benefits equal to sixty-six and two-thirds percent of his average weekly wage, the rate for temporary total disability, since he earned no wages.
The claimant testified that after the injury the employer provided “light duty” work until he was laid off. The record also indicates that at MMI the claimant was not released to regular employment. To the contrary, Dr. Gaba physically restricted the claimant from lifting more than 50 pounds occasionally and 25 pounds frequently. On April 5, 1997, Dr. Austin restricted the claimant from standing more than one hour at a time, walking more than four blocks, lifting or push/pulling more than 15 pounds, prolonged climbing, stooping, kneeling, crouching, or crawling. Dr. Austin also opined that the claimant’s grip strength was impaired. Based upon this evidence, the ALJ reasonably inferred that the claimant was medically restricted to modified employment when he began working for Enexx Propane.
The claimant’s regular employment required him to stand and cut heavy metal tubing. (Dr. Tyler report April 5, 1997). In contrast, the claimant stated that the work he performed for Enexx Propane required him to drive to customers and talk to them about buying a furnace which burns recycled oil. (Tr. p. 16). He further stated that the job required no lifting except a briefcase. (Tr. p. 18). Accordingly, there is substantial evidence to support the ALJ’s finding that the claimant did not return to “regular employment” in July 1997.
Moreover, insofar as the claimant’s employment with Enexx Propane can be considered “modified” employment, the record supports the ALJ’s finding that the claimant earned no wages during this employment. Accordingly, the ALJ properly determined that the claimant is entitled to sixty-six and two-thirds percent of his average weekly wage at the time of the injury.
III.
Finally we reject the respondents’ contention the claimant is barred from receiving temporary disability benefits for the period May 12 to October 27, 1997, because he refused to submit to an examination by Dr. Pak. Section 8-43-404(3), C.R.S. 1998, provides in pertinent part:
“So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same, all right to collect, or to begin or maintain any proceeding for the collection of, compensation shall be suspended. If the employee refuses to submit to such examination after direction by the director or any agent, referee, or administrative law judge of the division appointed pursuant to § 8-43-208(1) or any way obstructs the same, all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred. If any employee persists in any unsanitary or injurious practice which tends to imperil or retard recovery or refused to submit to such medical or surgical treatment or vocational evaluation as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee.”
We have previously held that, when read together, the first two sentences of § 8-43-404(3) create a two-tiered system of sanctions for refusal to submit to medical examinations. The first sentence permits a temporary suspension of the right to collect benefits for the period during which the claimant refuses to attend the medical examination. The second sentence creates permanent bar to collection of benefits if the claimant fails to submit to examination after being ordered to do so by an ALJ or the Director. See Bartilotta v. Coco’s Restaurant, W.C. No. 3-763-238 (September 8, 1988); Cunningham v. University Park,
W.C. No. 4-170-452 (January 1, 1998); Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997).
The respondents contend that Cunningham, Bartilotta, an Matthews were wrongly decided. Relying on Maryott v. J H. Properties, W.C. No. 4-157-363 (April 28, 1997), the respondents also contend that we have construed the term “suspend” to allow an absolute denial of temporary disability benefits.
The respondents’ arguments do not persuade us to depart from our holdings in Cunningham, Bartilotta, and Matthews. Therefore, we adhere to our conclusion that temporary disability benefits may be reinstated for the entire period a claimant previously refused to cooperate with a medical examination, as long as the claimant did not refuse to submit after being ordered to do so.
Furthermore, the respondents’ reliance on Maryott v. J H Properties, supra, is misplaced. Maryott involves the suspension of temporary disability benefits under § 8-42-105(2)(c), C.R.S. 1998, not § 8-43-404(3). In contrast, § 8-42-105(2)(c) applies to the claimant’s failure to attend an appointment with the “attending physician” and is designed to establish a more rigorous sanction for a claimant’s failure to attend an examination by the “attending physician” than applies when the claimant misses appointments with other medical providers.
Here, there is no finding or assertion that Dr. Pak was an “attending physician.” Further, the respondents did not seek a suspension of benefits under § 8-42-105(2)(c). Therefore, Maryott
is not dispositive of the issue presented here.
Rather, the respondents’ contention that the claimant is barred from receiving temporary disability benefits is predicated on the respondents’ written request that the claimant submit himself to an examination by Dr. Pak. The respondents did not obtain an order compelling the claimant to attend. Furthermore, in August 1998, the claimant agreed to cooperate with the exam. Therefore, the claimant’s right to collect benefits for the period was restored and is no longer subject to suspension. Cf. Bacon v. Industrial Claim Appeals Office, 746 P.2d 74 (Colo.App. 1987).
We recognize that the third sentence of § 8-43-404(3) permits an ALJ “to suspend the compensation” of a claimant who persists in an injurious practice or refuses to submit to medical, surgical or vocational treatment reasonably essential to promote recovery. However, the ALJ did not find such circumstances here. Consequently, the most that the respondents could hope to obtain is a temporary suspension of the claimant’s right to collect benefits pending the claimant’s cooperation.
The respondents’ remaining arguments have been considered and do not alter our conclusions. ALJ Rumler issued no order concerning the suspension of temporary disability benefit, and made no written findings about whether the claimant unreasonably refused to submit to an examination by Dr. Pak. (See Tr. p. 39). Therefore, it is immaterial whether ALJ Rumler’s oral comments during the hearing on September 8, 1997, might be interpreted as reflecting ALJ Rumler’s opinion that the claimant persisted in an injurious practice.
Moreover, because the right to receive temporary disability benefits remains suspended as long as a claimant refuses to cooperate with the respondents’ request for a medical examination, there remains an incentive for claimants to cooperate with similar medical requests. Thus, we reject the respondents’ contention that a permanent bar to temporary disability benefits is necessary to maintain that incentive.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 23, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 22, 1999 the following parties:
Michael Marshall, 507 Columbine Ave., Estes Park, CO 80517
Magnetic Engineering, Inc., 1136 Manitou Ave., Manitou Springs, CO 80829
Rhonda Norris, State Farm Fire and Casualty Co., P. O. Box 280929, Lakewood, CO 80228
Kenneth J. Shakeshaft, Esq., 1530 S. Tejon St., Colorado Springs, CO 80906 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy