W.C. No. 4-312-442Industrial Claim Appeals Office.
January 6, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded temporary total disability benefits. We affirm.
The claimant suffered compensable injuries on August 26, 1996, while working as a Nutritional Aide at the Glen Ayr Manor. On August 31, 1996, Dr. Carvalho released the claimant to return to work with restrictions of no lifting over 5 pounds, and no pushing/pulling over 10 pounds.
Based upon the evidence presented at a hearing on March 4, 1997, the ALJ found that the claimant’s regular job duties required her to fill pitchers with water and ice to dispense to patients. To accomplish these duties, the ALJ found that the claimant had to bend and twist at the waist, and push a cart weighing up to 50 pounds. The ALJ also found that the claimant was required to push wheelchairs with patients weighing more than 100 pounds. Under these circumstances, the ALJ determined that the claimant sustained her burden to prove that the industrial injury temporarily precluded her from performing her regular job, and awarded temporary total disability benefits commencing August 31, 1996.
On October 28, 1996, the respondents gave the claimant a written offer of modified employment, which the claimant refused. The written offer stated:
“Glen Ayr is able to meet your modified duties with a 5 pound restriction and rest periods as needed within your assigned job description of Nourishment Aide and passing fresh water pitchers to the residents.”
The ALJ determined that the offer of modified employment did not meet the medical restrictions imposed by Dr. Carvalho. Therefore, the ALJ rejected the respondents’ argument that the claimant’s failure to begin the offer of modified employment terminated temporary total disability benefits in accordance with § 8-42-105(3)(d)(I), C.R.S. 1997.
On review, the respondents’ sole argument is that the record does not support the ALJ’s finding that the October 28 offer of modified employment exceeded the restrictions imposed by Dr. Carvalho. We disagree.
Section 8-42-105(3)(d)(I), terminates temporary disability benefits when:
“The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.”
Admittedly, the attending physician’s opinion of the claimant’s ability to perform regular or modified employment is dispositive for purposes of terminating temporary disability benefits under § 8-42-105(3). Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); Lymburn v. Symbios Logic, ___ P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997). However, the determination of the extent of the restrictions imposed by the treating physician is a question of fact for resolution by the ALJ, and his finding must be upheld if supported by substantial evidence in the record. 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).
Here, the respondents admit that on October 28, 1996, Dr. Carvalho issued a “Physician’s Supplemental Report” which restricted the claimant to “MAX LIFT 5 LBS, MAX PUSH PULL 10 LBS.” On the same date, Dr. Carvalho also completed a “Concentra Patient Status Report,” further restricting the claimant from “repetitive bending or twisting at the waist.”
Accordingly, there is substantial evidence in the record to support the ALJ’s finding that, as of October 28, 1996, Dr. Carvalho restricted the claimant from lifting over 5 pounds, pushing/pulling over 10 pounds and repetitive bending and twisting of the waist. Therefore, we must uphold the ALJ’s factual determination concerning the claimant’s medical restrictions. Section 8-43-301(8), C.R.S. 1997.
Because the respondents’ written offer of modified employment does not address the claimant’s limitations concerning pushing/pulling and repetitive bending and twisting, the ALJ could plausibly infer that the October 28 offer did not meet the restrictions imposed by Dr. Carvalho. Under these circumstances, the ALJ correctly determined that the claimant’s refusal of the offer did not trigger a termination of benefits under §8-42-105(3)(d)(I).
The employer’s subsequent testimony that additional accommodations would have been provided does not compel a contrary determination. This is true because the issue was whether the offer, which was conveyed to the claimant on October 28, 1996, complied with the restrictions imposed by Dr. Carvalho.
To the extent the respondents have made further arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
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. 1997.
Copies of this decision were mailed January 6, 1998 to the following parties:
Pauline Sotelo, 3845 Harlan St., Apt. 2, Wheatridge, CO 80033
Karen A. Schutt, NHA, Glen Ayr Health Center, 1635 Eaton St., Lakewood, CO 80214
Tina Southard, Business Insurance Co., 2000 S. Colorado Blvd., Ste. 11500, Denver, CO 80222
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Drive, #280, Denver, CO 80209 (For the Claimant)
Bonnie J. McLaren, Esq. William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For the Respondents)
BY: ________________________________