W.C. No. 4-295-037Industrial Claim Appeals Office.
June 25, 1998
FINAL ORDER
The respondents have filed a petition to review an order of Administrative Law Judge Gandy (ALJ) dated December 8, 1997, insofar as the ALJ awarded the claimant temporary total disability benefits after May 6, 1996, determined that Dr. Donner is an authorized treating physician, and ordered the respondents to pay for testing recommended by Dr. Donner. We affirm the order in part, and remand for further proceedings.
The claimant sustained a compensable back injury on April 12, 1996, and was treated by Drs. Budensiek and Blesch. On May 7, 1996, the claimant returned to work at the direction of Dr. Budensiek. The claimant’s supervisor testified that the claimant returned to his regular duties, and this testimony was not contested by the claimant. However, the claimant was also discharged on May 7, 1996. The ALJ found that the claimant was discharged for improperly popping the clutch on a truck, but that the claimant’s ability to properly operate the clutch was impaired by continuing pain in his back and legs, and numbness in his feet resulting from the industrial injury. After the discharge, the claimant continued receiving chiropractic treatments from Dr. Blesch, and returned to Dr. Budensiek on August 5, 1997. The claimant also saw several other physicians, including Drs. Curiel and Donner, who recommended additional testing.
After a hearing held on June 25, 1997, the ALJ issued an order dated July 28, 1997, determining that Dr. Budensiek was the authorized treating physician, and that no other medical treatment the claimant had received was authorized. Consequently, the ALJ denied and dismissed the claim for medical benefits based on the treatment of other providers. The ALJ also awarded temporary total disability benefits, but retracted that award in a corrected order dated September 3, 1997. The respondents initially filed a petition to review the July 28 order, but withdrew the petition after a corrected order was issued. No petition for review was filed from the corrected order.
Another hearing was held November 12, 1997, on the issues of temporary total disability benefits, medical benefits, and penalties. Prior to the hearing, the claimant filed a pleading entitled “Motion To Add Issue of Medical Benefits — Authorized And That E. Jeffrey Donner, M.D., Is An Authorized Treating Physician . . . .” The Motion was not contested, and was therefore granted on September 30, 1997 (erroneously cited by the ALJ as September 29, 1997), pursuant to the Rules of Procedure, Part VIII(D)(2), 7 Code Colo. Reg. 1101-7 at 23 (if no response to a motion is filed within ten days, the motion may be deemed confessed).
After the November 12 hearing, the ALJ issued the order which is now before us. The ALJ determined that Dr. E. Jeffrey Donner is an authorized treating physician pursuant to Order dated September 30, 1997, and ordered the respondents to pay for the testing recommended by authorized physicians. Further, the ALJ determined that the claimant is entitled to ongoing temporary total disability benefits beginning April 15, 1996. In support of the temporary disability benefit award, the ALJ found that the claimant is not at maximum medical improvement (MMI) and that “no doctor has returned [the claimant] back to work.” Finding of Fact 8. As we understand this finding, it refers to the time period after the claimant was discharged. The ALJ also found, implicitly, that the claimant was not “at fault” for his discharge and that the evidence established that the injury contributed to some degree to the claimant’s wage loss after his termination See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
I.
The respondents contend that the temporary disability benefit award is inconsistent with applicable law. We disagree.
In pertinent part, § 8-42-105(3), C.R.S. 1997, provides that temporary total disability benefits shall continue until the first occurrence of one of the following:
(a) The employee reaches maximum medical improvement;
(b) The employee returns to regular or modified employment;
(c) The attending physician gives the employee a written release to return to regular employment . . . .
For purposes of § 8-42-105(3)(c), the term “attending physician” means an authorized treating physician. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
In Dr. Budensiek’s office note dated May 4, 1996, he indicated that the claimant should return to his usual duties on May 6, 1996, and it is undisputed that Dr. Budensiek communicated this to the claimant. This is sufficient to constitute a written release to return to regular employment, as contemplated by §8-42-105(3)(c). See Popke v. Industrial Claim Appeals Office, supra.
However, Dr. Budensiek’s written release is not dispositive of the termination of benefits under § 8-42-105(3)(c) if there were multiple authorized treating physicians with conflicting opinions concerning the claimant’s ability to perform his regular employment. See Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). In the December 8, 1997 order, the ALJ found that Dr. Donner is also an authorized treating physician, and that Dr. Donner has not released the claimant to return to work.
Insofar as the ALJ relied on his order of September 30, 1997 to find that Dr. Donner is authorized, we conclude that reliance is misplaced. The September 30 order was entered pursuant to Rule VIII(D)(2), and that rule only applies to “procedural” motions. A motion to declare a physician authorized is not procedural in nature. Therefore, insofar as the September 30 order declared that Dr. Donner is authorized, the order is improper.
We also agree with the respondents that the record does not support the ALJ’s finding that Dr. Budensiek referred the claimant to Dr. Donner on August 5, 1997. Dr. Budensiek’s August 5, 1997 office note merely acknowledges that the claimant “has been seeing . . . Dr. Donner an orthopedic surgeon in Lakewood,” and does not contain a referral to Dr. Donner.
However, the ALJ also relied on the claimant’s testimony that Dr. Budensiek had referred him to Dr. Donner. Although the respondents argue that this is inadmissible hearsay, the claimant’s testimony was offered to prove the existence of the statement itself, i.e., the referral, and not the truth of some matter asserted in the statement. Thus, the claimant’s testimony is not hearsay, see C.R.E. 801(c), and the ALJ could properly consider it. Moreover, the claimant’s testimony constitutes substantial evidence that he was referred to Dr. Donner.
The claimant’s testimony does not reveal when the referral was made. However, even if Dr. Donner was not authorized treating physician at the time Dr. Budensiek released the claimant to return to regular employment, this is not necessarily dispositive. Insofar as Dr. Donner’s medical reports may be construed as a retroactive opinion that the claimant was not able to return to work on May 6, 1996, the ALJ could assess the weight to be afforded that opinion. See Lopez v. Ford Brothers Inc., W.C. No. 4-231-685 (January 30, 1998); Murphy v. Neca-Intermountain Electric Inc., W.C. No. 4249-742 (September 16, 1996).
In any event, the ALJ’s findings support the conclusion that Dr. Blesch was an authorized treating physician at the time of the May 6, 1996 release. The ALJ found that Dr. Budensiek authorized Dr. Blesch’s treatment in an office note dated April 29, 1997. Contrary to the respondents’ position, we believe this is a reasonable inference from the language of the note, which states that the claimant is receiving chiropractic treatments and that “I advise that he continue with therapy daily, either chiropractic or physical therapy for the next week.” One week from April 29 would be May 6, when the claimant was obtaining the chiropractic treatments from Dr. Blesch. Therefore, the ALJ could infer that Dr. Blesch was an attending physician at the time Dr. Budensiek released the claimant to return to work.
It is undisputed that Dr. Blesch had not released the claimant to return to regular or modified work as of May 6. Moreover, the ALJ resolved the conflicting evidence on this issue in favor of the claimant, and was not persuaded by Dr. Budensiek’s opinion that the claimant was physically able to return to his regular work on May 6. See Burns v. Robinson Dairy, Inc., supra. We have no basis for disturbing the ALJ’s resolution of the conflict. See § 8-43-301(8), C.R.S. 1997. Thus, the temporary total disability award is not precluded by § 8-42-105(3)(c). See Burns v. Robinson Dairy, Inc., supra.
We recognize that the claimant returned to regular employment on May 7, 1996, and that this is an independent basis for termination of temporary total disability benefits under §8-42-105(3)(b). However, § 8-42-105(3)(b) is not a permanent bar to further temporary disability benefits if the claimant reestablishes a causal connection between the industrial injury and a temporary wage loss after he ceased working. In this regard, the claimant is not required to prove that the industrial injury is the sole cause of his wage loss. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev’d on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996). Rather, the claimant is entitled to temporary disability benefits if the industrial injury is “to some degree” the cause of the wage loss. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
Here, there is substantial evidence in the claimant’s testimony and the various medical reports that the claimant was temporarily totally disabled during the disputed period. Under these circumstances, the ALJ was persuaded that the industrial injury contributed “to some degree” to his wage loss, see PDM Molding v. Stanberg, supra, and we perceive no error in the award of temporary total disability benefits after May 7, 1996. See PDM Molding v. Stanberg, supra; see also Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (claimant need not present opinions of authorized treating physicians to establish that temporary disability benefits should begin).
However, since the claimant worked on May 7, 1996, we conclude that the claimant is not entitled to temporary total disability benefits for that date, so that portion of the award will be set aside. Further, for reasons discussed below, we conclude that the case must be remanded for further findings concerning whether the award of ongoing temporary total disability benefits is proper.
II.
The respondents contend that the claimant’s temporary total disability benefits terminate on August 5, 1997, when Dr. Budensiek opined that the claimant reached MMI. We conclude that the ALJ’s findings of fact are insufficient to resolve the respondents’ contention.
Section 8-42-105(3)(a) provides that temporary total disability benefits terminate when the claimant reaches MMI. The initial determination of MMI is to be made by an authorized treating physician, except as provided by §8-42-107(8)(b)(II)(A)-(D). See § 8-42-107(8)(b)(I), C.R.S. 1997. If either party disputes the treating physician’s determination of MMI, the claimant must undergo an independent medical examination (IME). The IME physician’s opinion is binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III) also provides that no hearing on MMI shall be held until the IME has been concluded.
However, an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning whether an authorized treating physician has placed the claimant at MMI. Furthermore, if an authorized treating physician issues conflicting or ambiguous opinions on whether the claimant is at MMI, the ALJ may resolve the conflict without an IME. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Here, Dr. Budensiek’s August 5, 1997 office notes states “I think he has reached maximum medical benefit from his injury,” but that “it is impossible for me to determine [a] valid date of MMI because I have not seen him for 15 months and have no medical records or history of that date to determine date of disability.” The claimant argued at the November 12 hearing that this is not a finding of MMI, but rather, a finding of “maximum therapeutic benefit.” Transcript 59. Further, the record also contains reports from Dr. Budensiek recommending a reconditioning program before the claimant returns to work, as well as an EMG and nerve conduction studies to investigate radiculopathy, and a myelogram/CT of the back if the other tests were abnormal.
The claimant has not undergone an IME on the issue of MMI. Therefore, the ALJ exceeded his authority insofar as he found that the claimant is not at MMI. Furthermore, the ALJ did not resolve the issue of whether Dr. Budensiek placed the claimant at MMI, for purposes of determining whether the IME provisions of §8-42-107(8)(b)(II) have been triggered. Thus, the matter must be remanded to the ALJ to resolve that issue. If, on remand, the ALJ determines that Dr. Budensiek placed the claimant at MMI, that opinion is binding on the termination of temporary disability benefits, unless a party pursues the IME procedure set forth in §8-42-107(8)(b)(II).
IT IS THEREFORE ORDERED that the ALJ’s order issued December 8, 1997, is affirmed insofar as it awards temporary total disability benefits from April 15, 1996 to May 6, 1996, and from May 8, 1996 to August 5, 1997.
IT IS FURTHER ORDERED that the order is affirmed insofar as it determined that Dr. Donner is an authorized physician, and ordered the respondents to pay for testing recommended by Dr. Donner.
IT IS FURTHER ORDERED that the case is remanded for specific findings concerning whether Dr. Budensiek opined that the claimant reached maximum medical improvement on August 5, 1997, and a new order consistent with those findings.
INDUSTRIAL CLAIM APPEALS PANEL __________________________________ Kathy Dean __________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, Colorado 80203, by filing a petition to review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date the Order was mailed, pursuant to §§8-43-301(1) and 307, C.R.S. (1997 Cum. Supp.).
Copies of this order were mailed June 25, 1998 to the following parties:
John S. Ramirez, 1960 Pecan St., Ft. Collins. CO 80526
Bestway Concrete Co., TIG Fairmont Insur. Co., P.O. Box 17005, T.A., Denver, CO 80217-0005
TIG Fairmont Insurance Co., P.O. Box 17005, T.A., Denver, CO 80217-0005
Esteban A. Salazar, Esq., 1439 5th St., Greeley, CO 80631 (For the Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
By: _______________________________________________