W.C. No. 4-262-510Industrial Claim Appeals Office.
September 18, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ denied his claim for temporary disability benefits subsequent to November 5, 1995. We affirm.
The claimant suffered a compensable injury on July 5, 1995, which temporarily precluded him from performing his regular employment. In the course of treatment, the claimant was examined by several physicians, including physicians at the La Plata Family Medicine Association (La Plata) and Antoinette Nowakowski, D.C. On October 20, 1995, La Plata renewed a referral to Dr. Nowakowski for further chiropractic care. The claimant saw Dr. Nowakowski five times from October 20, 1995 to November 27, 1995. On December 14, 1995, Dr. Nowakowski filled out a “Physician’s Supplemental Report” which indicated that the claimant was capable of returning to regular employment effective November 5, 1995.
Relying on Dr. Nowakowski’s December 14 report, the respondents filed a General Admission of Liability dated December 21, 1995, which terminated temporary disability benefits effective November 5, 1995. The claimant subsequently filed a “Notice of Contest” which objected to the termination of benefits, and requested an award of continuing temporary disability benefits.
At a hearing on February 13, 1996, the claimant testified that he did not consider Dr. Nowakowski to be his “primary” treating physician, and that Dr. Nowakowski never provided or discussed a release to return to regular employment. Therefore, the claimant argued that Dr. Nowakowski’s December 14 release did not preclude an award of further benefits.
The ALJ rejected the claimant’s arguments and determined that, pursuant to § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.), the claimant was not entitled to temporary total disability benefits after the date Dr. Nowakowski released the claimant to return to regular employment. The ALJ also found that the respondents “properly terminated” the claimant’s benefits on November 5, 1995. Therefore, the ALJ denied the claim for continuing temporary disability benefits.
On review, we agree with the claimant’s contention that the ALJ erred in finding that the respondents “properly terminated” benefits. However, we reject the claimant’s argument that the ALJ erred in failing to award additional temporary disability benefits.
I.
Admittedly, the Rules of Procedure Part IX(C)(1)(b), 7 Code Colo. Reg. 1101-3 at 34, prohibit the unilateral termination of temporary disability benefits based upon a release to return to regular employment unless the release is from the “authorized treating physician who has provided the primary care.” (Emphasis added). However, Rule IX(C)(1)(b) only governs the termination of benefits without a hearing.
Here, the ALJ’s order denying the claim for further temporary disability benefits was entered after an evidentiary hearing. Further, the issue before the ALJ was whether the claimant was entitled to additional temporary disability benefits, and not whether the respondents unilaterally terminated benefits in violation of Rule IX(C)(1)(b) Compare Jyrkinen v. Peakload Inc. of America, W.C. No 4-139-096, June 15, 1994 [penalties imposed for termination of temporary disability benefits in violation of Rule IX(C)(1)(b)]. Consequently, the requirements of Rule IX(C)(1)(b), are not dispositive of the claim. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) Collins v. Industrial Commission, 676 P.2d 1270 (Colo.App. 1984). Rather, as recognized by the ALJ, the claim is governed by the provisions of § 8-42-105(3).
However, in the absence of a claim for penalties, the ALJ erroneously determined that the respondents “properly” terminated benefits. Therefore, we set aside this factual determination by the ALJ.
Moreover, because there was no penalty issue before the ALJ we need not consider the claimant’s arguments that the respondents violated Rule IX(C)(1)(b). Nor do we address the claimant’s contention that the respondents violated § 8-43-404(2), C.R.S. (1996 Cum. Supp.), and Rule XI(B)(2) which pertain to the timely exchange of medical records.
II.
Next, the applicable law does not require a release from the “primary” treating physician in order to establish the termination of temporary disability benefits. Thus, it is immaterial whether Dr. Nowakowski was the claimant’s “primary” treating physician. Compare §8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) (MMI to be determined by “authorized treating physician who has provided the primary care”) [amended 1996 Colo. Sess. Laws ch. 112 at 269].
Section 8-42-105(3)(c) provides that temporary disability benefits terminate when “the attending physician gives the employee a written release to return to regular employment.” (Emphasis added). The rules of statutory construction require that the statute be given its plain and ordinary meaning if the language is clear and unambiguous. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). The American Heritage College Dictionary Third Edition, 1993, defines the term “attending” as meaning to take care of or give attention.
Thus, the plain meaning of the language in § 8-42-105(3)(c), requires the termination of temporary disability benefits when a physician who is providing medical care to the claimant releases the claimant to return to regular employment. The claimant concedes that Dr. Nowakowski provided some treatment. Therefore, Dr. Nowakowski was “attending” the claimant within the meaning of § 8-42-105(3)(c).
Nevertheless, the claimant also contends that the respondents failed to prove that Dr. Nowakowski is a “physician.” The claimant’s argument is premised on § 8-42-101(3.5)(a)(I), C.R.S. (1996 Cum. Supp.), which provides that for purposes of Level I accreditation, only “chiropractors” licensed under Article 33, Title 12 are “physicians.” The claimant also relies upon § 8-42-101(3)(a)(III) and § 8-42-101(3.6), C.R.S. (1996 Cum. Supp.), which state that Level I accreditation is mandatory for chiropractors who provide “primary care” to injured workers who suffer disabling injuries. However, in view of our conclusion that §8-42-105(3)(c) does not require a release from the “primary” treating physician, the claimant’s reliance on § 8-42-101(3.6) is misplaced.
Furthermore, the claimant’s argument that Dr. Nowakowski does not meet the definition of “physician” was not raised before the ALJ. (Tr. pp. 3, 37, 38). Consequently, the claimant has waived the argument that the respondents failed to prove that Dr. Nowakowski meets the definition of “physician.” See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
Alternatively, the claimant contends that Dr. Nowakowski’s release is ineffective because Dr. Nowakowski did not hand him the written release. We disagree.
In Stringfellow v. The Park Company, W.C. No. 4-142-903, January 18, 1994, we rejected a similar argument. We concluded that in the context of § 8-42-105(3)(c) the term “gives” is not intended to require proof that the attending physician handed the written release to the claimant. Instead, we concluded that temporary disability benefits are terminated under § 8-42-105(3)(c) when the attending physician issues a written opinion that the claimant is physically capable of performing regular employment. In reaching this conclusion we noted that if the General Assembly had intended to require proof that the attending physician actually delivered the written release to the claimant, it could have adopted language similar to the language in § 8-42-105(3)(d).
Section 8-42-105(3)(d) requires that where the insurer seeks to terminate benefits based upon an offer of modified employment, the insurer must prove that the injured employee has actually received the offer of modified employment. See Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995, aff’d Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication). Unlike § 8-42-105(3)(d), the termination of benefits based upon a release to return to regular employment is not dependent on a specific offer of employment. See Bernal v. National Hispana Leadership Institute, W.C. No. 4-159-801, July 8, 1994. Therefore, we adhere to our stated conclusions in Stringfellow, and reject the proposition that § 8-42-105(3)(c) requires the respondents to prove the attending physician has delivered a written release to the claimant.
Lastly, the claimant contends that it was fundamentally unfair to terminate his benefits based upon information of which he had no knowledge. However, the claimant concedes that was notified of Dr. Nowakowski’s release upon receipt of the respondents’ General Admission of Liability dated December 21, 1995. Because the hearing did not occur until February 13, 1996, the claimant was afforded adequate notice of the medical evidence which the respondents relied upon to assert that the claimant was not entitled to further benefits. Therefore, the claimant’s due process rights were not implicated.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 21, 1996, is modified to delete the ALJ’s factual determination that the respondents “properly” terminated temporary total disability benefits as of November 5, 1995, but as modified, the ALJ’s order denying the claim for temporary total disability benefits after November 5, 1995, 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. (1996 Cum. Supp.).
Copies of this decision were mailed September 18, 1996 to the following parties:
Brian R. Popke, 7645 CR 250, Durango, CO 81301
Richard Bates d/b/a Drywall Service of Durango, 890 CR 206, Durango, CO 81301-7683
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, 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: _______________________