W.C. No. 4-273-854Industrial Claim Appeals Office.
November 20, 1996
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant temporary total disability benefits commencing October 28, 1995 and continuing. We affirm.
Crediting the claimant’s testimony, the ALJ found that the claimant sustained a hernia, “on approximately October 26, 1995,” while moving beams weighing three hundred pounds. The ALJ further found that the hernia was first diagnosed on October 28, 1995, when the claimant reported to Mercy Medical Center Emergency Room for treatment of pneumonia. The hernia diagnosis was later confirmed by Dr. Stern who reported on April 3, 1996, that the claimant “should avoid any heavy lifting or straining until this hernia is repaired.”
The ALJ noted that the claimant’s pre-injury job duties required heavy lifting, and that he has not worked since October 28, 1995. Consequently, the ALJ awarded temporary total disability benefits commencing October 28.
On review, the respondents contend that there is not substantial evidence in the record to support the ALJ’s finding that the claimant was temporarily disabled on October 28. Specifically, the respondents contend that the claimant “failed to present any medical evidence that he was restricted from working subsequent to October 28, 1995.” We reject this argument.
It is certainly true, as the respondents contend, that the claimant is required to demonstrate that the physical effects of the injury have rendered him unable to perform his usual duties, and that he left work as a result of the injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); § 8-42-103(1)(a), C.R.S. (1996 Cum. Supp.). Moreover, we have previously held that, in view of § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.), the claimant must establish that the attending physician has medically restricted him from performing his regular employment in order to claim temporary disability benefits. Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff’d., Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication); White v. TV Communications Network, Inc., W.C. No. 4-157-203, November 24, 1993. In these cases we reasoned that if the opinion of the treating physician that the claimant is able to perform regular employment is sufficient to terminate temporary disability benefits, his opinion that the claimant is restricted from performing regular employment is a prerequisite to temporary disability benefits. Cf. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995) (purpose of § 8-42-105(3)(c) is to reduce litigation by treating the opinion of the treating physician as conclusive concerning the claimant’s ability to perform regular employment).
However, in this case the respondents incorrectly assert that the record lacks substantial evidence that the claimant was medically restricted from performing his regular employment. Substantial evidence is “probative evidence which a rational fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Because we must uphold the ALJ’s findings which are supported by substantial evidence, we are required to defer to his credibility determinations, his resolution of conflicts in the evidence and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, supra; § 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Here, the ALJ credited the claimant’s testimony that his regular duties at the time of injury involved heavy lifting, including the lifting of beams weighing up to three hundred pounds. Moreover, the ALJ credited the claimant’s testimony that the onset of his symptoms occurred while he was performing heavy lifting.
The claimant’s testimony, taken with Dr. Stern’s report stating that the claimant should not engage in heavy lifting, constitutes substantial evidence that the claimant was medically restricted from performing his regular duties as of October 28, 1995. Although Dr. Stern did not examine the claimant until after October 28, it may logically be inferred that Dr. Stern was of the opinion that the claimant could not engage in heavy lifting until such time as the hernia is surgically repaired.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed November 20, 1996 to the following parties:
Mitchell L. Rodenbaugh, 3114 N. Arcadia St., Colorado Springs, CO 80907
Baldwin Construction, 301 E. Lincoln Ave., Ft. Collins, CO 80524-2505
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Tracy J. Cross, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
Gene Dackonish, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
By: _______________________________