W.C. No. 4-212-077Industrial Claim Appeals Office.
February 16, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded temporary disability and medical benefits. We affirm.
The claimant suffered a compensable back injury on May 5, 1994, during his employment with Kan Build of Colorado Inc. (Kan Build). The employer referred the claimant to First Care where he was treated by Dr. Allen and Dr. Kasenberg. The claimant was released to return to modified work which did not require bending or lifting over ten pounds. As instructed by Kan Build, the claimant returned to “light duty” work on May 16, 1994, consisting of painting trim and performing putty work. However, on the advice of an unauthorized chiropractor, the claimant did not return to work after May 18, 1994. As a result, the claimant’s employment was terminated.
Based upon these facts, the ALJ found that the claimant was at fault for the termination of his employment at Kan Build. However, the ALJ found that Dr. Allen subsequently increased the claimant’s medical restrictions on May 24 to preclude “leaning/bending over,” and lifting over two pounds. Dr. Allen also directed the claimant to change sitting and standing positions frequently. The ALJ determined that there was “no credible evidence” that Kan Build “would or could have provided” the claimant work within these restrictions. The ALJ therefore determined that the claimant reestablished a causal connection between the industrial injury and his wage loss as of May 24, 1994, and ordered the respondents to pay temporary disability benefits commencing May 24. The ALJ also granted the claimant’s request for a change in the treating physician, authorizing Dr. Harvey.
I.
On review, the respondents first contend that the ALJ erred in awarding temporary disability benefits after May 24, 1994. In support, the respondents cite the fact that the claimant returned to modified work and was at fault for the termination of that employment. We conclude there was no error in the award of benefits.
In PDM Molding Inc. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court held that termination of employment for fault does not automatically bar the claimant from subsequently receiving temporary total disability benefits, if the post-termination wage loss is “to some degree” attributable to the work-related injury. Accordingly, temporary disability benefits are precluded only when the work-related injury plays no part in the subsequent wage loss. Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995).
Notwithstanding the claimant’s fault for the termination of his employment after May 18, the ALJ found that the claimant’s physical limitations resulting from the industrial injury precluded the claimant from obtaining and maintaining employment after May 24, 1994. Moreover, the ALJ was not persuaded that the claimant could have continued his employment with Kan Build under the additional restrictions. These determinations support a conclusion that the claimant’s post-termination wage loss was “to some degree” caused by the industrial injury, and therefore, the ALJ’s findings support the award of temporary disability benefits.
However, the respondents also contend that claimant admitted that the light duty employment he was provided at Kan Build met the May 24 restrictions imposed by Dr. Allen. Therefore, the respondents argue that the record does not support the ALJ’s finding of “no credible evidence” that Kan Build could provide work within the May 24 medical restrictions.
Contrary to the respondents’ argument, the claimant did not expressly concede that the light duty work provided by Kan Build was within the medical restrictions imposed by Dr. Allen on May 24. The claimant testified that he would have continued to work for Kan Build if he had not been fired. (Tr. pp. 27-28.) However, based upon the record as a whole, we agree with the claimant that his testimony does not necessarily reflect an admission that he was provided work within his medical restrictions. Rather, this testimony may reflect only the claimant’s willingness to work for Kan Build. (Tr. pp. 20, 24.)
In fact, the claimant testified that the light duty work provided by Kan Build required bending. (Tr. pp. 20-22). Although the employer’s plant manager, Errol Schroeder, denied this requirement, the ALJ expressly found the claimant’s testimony credible, and thus, implicitly resolved the conflict against the respondents. (Finding of Fact 1). Moreover, neither the claimant nor the respondents offered any evidence concerning whether Kan Build would or could provide work which allowed the claimant to change positions frequently, or lift less than two pounds. (Tr. pp. 46, 48). Therefore, the ALJ could reasonably conclude that the record contained no credible evidence that such employment could or would have been offered to the claimant.
The fact that Dr. Kasenberg reduced the claimant’s medical restrictions on September 7, 1994, to allow the claimant to lift up to twenty pounds, does not compel a different result. On November 20, 1994, Dr. Kasenberg again restricted the claimant from bending and stooping. Furthermore, insofar as Dr. Kasenberg’s September 7 restrictions are inconsistent with Dr. Allen’s May 24 restrictions, the ALJ resolved the inconsistency in favor of Dr. Allen and found the May 24 restrictions most persuasive. (Finding of Fact 9).
II.
Alternatively, the respondents argue that the ALJ lacked jurisdiction to consider the claim for temporary disability benefits after December 9, 1994, because Dr. Kasenberg determined the claimant had reached maximum medical improvement (MMI) on December 9. We disagree.
We have previously held that where the authorized treating physician who has provided the primary care has determined MMI, § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.), precludes the ALJ from hearing a claim for further temporary disability benefits until the completion of an independent medical examination (IME). Molloy v. Martin Marietta Corporation, W.C. No. 4-136-232, November 29, 1994; Johanningsmeier v. Swedish Medical Center, W.C. No. 4-115-315, October 27, 1994; Holmquist v. B P Concrete, Inc., W.C. No. 4-190-410, October 11, 1995. However, we also stated in those cases that an IME is not a prerequisite to the ALJ’s resolution of a factual dispute concerning whether the primary care physician has determined MMI.
Here, the ALJ was not persuaded that Dr. Kasenberg found the claimant to be at MMI on December 9, 1994, and this is a plausible interpretation of Dr. Kasenberg’s medical records. See Tr. pp. 3-10; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). The respondents admit that Dr. Kasenberg did not expressly state that the claimant reached MMI. (Tr. p. 7). Instead, the respondents argue that Dr. Kasenberg’s November 30, 1994 clinic note which refers the claimant for a functional capacity evaluation and impairment rating inherently includes a determination of MMI. (Tr. pp. 5, 8). However, the respondents concede that Dr. Kasenberg’s November 30 report also refers the claimant for an MRI and conditions the recommendation for an impairment rating and functional capacity evaluation on the results of the MRI. (Tr. p. 7). Further, Dr. Kasenberg’s November 30 and December 9 reports both indicate that the claimant was expected to return for “follow-up,” and the respondents do not dispute that Dr. Kasenberg referred the claimant to Dr. Harvey for a second opinion which was not completed until December 16, 1994.
Because the ALJ found that Dr. Kasenberg did not determine the claimant to be at MMI on December 9, an IME was not a prerequisite to a hearing on the claim for further temporary disability benefits. Therefore, the ALJ did not lack authority to proceed with the hearing in the absence of an IME.
III.
For similar reasons, the claimant’s request for medical benefits did not implicitly challenge a determination of MMI. Consequently, an IME was not a prerequisite to the hearing the request for a change of provider See Story v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA0446, December 7, 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 16, 1996 to the following parties:
Steven E. Savage, 511 West St., Ft. Collins, CO 80521
Kan Build of Colorado, Inc., P.O. Box 259, Osage City, KS 66523
California Indemnity Insurance, P.O. Box 6597, Englewood, CO 80155
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Respondents)
Kristi J. Coffin, Esq., 1416 11th Ave., Greeley, CO 80631 (For the Claimant)
BY: _______________________