W.C. No. 4-220-723Industrial Claim Appeals Office.
June 10, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Friend (ALJ), which awarded the claimant temporary total disability benefits subsequent to April 13, 1995. We affirm.
Insofar as pertinent, the ALJ found that the claimant sustained a compensable knee injury on July 23, 1994. The claimant’s initial attending physician was Dr. Mellinger. Dr. Mellinger treated the claimant conservatively until February 27, 1995. On that date, Dr. Mellinger released the claimant to “go back to her regular job as a rib trimmer.” He also stated that he intended to refer the claimant “to an orthopedic surgeon for final evaluation of MMI and disability rating.”
On April 13, 1995, the claimant was examined by Dr. Weeks, an orthopedic specialist. At that time, Dr. Weeks diagnosed the claimant as suffering “posttraumatic anterior compartment” pain in the left knee, and recommended “anesthesia and diagnostic/surgical arthroscopy left knee.” Dr. Weeks also issued a report stating that the claimant was restricted from climbing stairs and ladders, and was prohibited from kneeling, squatting, crawling, and stooping.
On April 27, 1995, the respondent’s insurance adjustor sent a letter to Dr. Weeks stating that the proposed diagnostic surgery would not be approved. The adjustor noted that Dr. Weeks reported the claimant as suffering reduced range of motion in her knee, and that this was inconsistent with examinations by Dr. Mellinger and the physical therapist. The adjustor further stated that it was her understanding that the April 13, 1995 appointment with Dr. Weeks “was for an impairment rating only.”
On May 12, 1995, Dr. Weeks again examined the claimant. On that date, he reported the claimant’s knee range of motion was “full and functional.” He also stated that he agreed the claimant was “at MMI.”
In April 1996, the claimant underwent a Division-sponsored independent medical examination (IME) on the issues of maximum medical improvement (MMI) and permanent impairment. The IME was performed by Dr. Smith, who opined that the claimant was not at MMI because of the possibility of a torn meniscus. The ALJ found that the respondent then “confessed the division IME report” and has “authorized additional knee surgery” and temporary total disability benefits commencing July 30, 1996.
Under these circumstances, the ALJ rejected the respondent’s argument that it is not liable for temporary disability benefits from April 13, 1995 until July 30, 1996. Specifically, the ALJ determined that Dr. Weeks was an “attending physician” and the restrictions imposed on April 13, 1995 precluded the claimant from performing her work as a meat trimmer. The ALJ also found that Dr. Weeks’ May 12, 1995 report, issued after the adjustor’s letter, was not “persuasive.” The ALJ reasoned that since there was no change in the claimant’s knee between April 13, 1995 and Dr. Smith’s IME report, he was bound by Dr. Weeks’ April 13 restrictions.
On review, the respondent contends that the ALJ erred in awarding temporary total disability benefits from April 13, 1995 until July 30, 1996. It argues that Dr. Mellinger was the claimant’s “attending physician,” and that he released the claimant to regular employment on February 27, 1995. The respondent also asserts that the evidence does not support the ALJ’s determination that Dr. Weeks was an attending physician. We are not persuaded.
Section 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.), provides that temporary disability benefits shall continue until the “attending physician gives the employee a written release to return to regular employment.” As the respondent argues, an ALJ is not free to depart from the “attending physician’s” opinion concerning the claimant’s ability to perform regular employment Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
However, it is possible for an attending physician to issue conflicting opinions concerning whether or not the claimant is released to regular employment. Similarly, it is possible for the claimant to have multiple attending physicians who issue conflicting opinions concerning the claimant’s ability to work. In such cases, the ALJ is free to resolve the conflicts in the evidence and determine whether or not the claimant has been released to regular employment. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Burns v. Robinson Dairy, supra.
We have previously held that the term “attending physician,” as used in § 8-42-105(3)(c), is a physician who takes care of or gives attention to the claimant in connection with the industrial injury. See Popke v. Drywall Service of Durango, W.C. No. 4-262-510 (September 18, 1996). We reached this conclusion because this definition represents the plain and ordinary meaning of the word “attending.” See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (words in statute should be given plain and ordinary meanings). The identity of the claimant’s attending physician or physicians is itself a question of fact for the ALJ. See Blue Mesa Forest v. Lopez, supra.
To the extent these issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying the substantial evidence test we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The respondent’s argument notwithstanding, there is substantial evidence to support the ALJ’s finding that Dr. Weeks was an attending physician. Although the respondent seeks to portray Dr. Mellinger’s referral of the claimant to Dr. Weeks as limited to conducting an examination and impairment rating, Dr. Mellinger specifically requested Dr. Weeks to consider the issue of MMI. Consideration of MMI necessarily required Dr. Weeks to evaluate the claimant and determine whether, and under what circumstances, he might provide treatment to improve the claimant’s physical condition. See § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.). Indeed, Dr. Weeks apparently understood that he was to become an attending physician because he proposed to perform the recommended surgery provided “all parties concerned agreed to proceed.”
Moreover, Dr. Mellinger’s decision to refer the claimant to Dr. Weeks might plausibly be interpreted as a determination that an orthopedic referral was necessary. In fact, on December 27, 1994, Dr. Mellinger stated that “he didn’t think a referral to an orthopedic surgeon would do much good” in the claimant’s case. However, Dr. Mellinger’s February 27, 1995 report reflects a change of opinion and may be viewed as evidencing Dr. Mellinger’s conclusion that he could not improve the claimant’s condition, but that an orthopedic physician might.
Moreover, Dr. Weeks’ April 13, 1995 report supports the ALJ’s finding that the claimant was restricted from performing her regular employment. The April 13 restrictions preclude the claimant from using stairs, and the claimant testified that her job as a meat trimmer required frequent use of stairs. (Tr. pp. 22-23).
The respondent also contends that temporary total disability benefits must be terminated no later than May 12, 1995, when Dr. Weeks “agreed” that the claimant reached MMI. However, this argument ignores the fact that the claimant underwent a Division-sponsored IME on the issue of MMI. The IME physician determined that the claimant was not at MMI. Since the respondents did not attempt to overcome the IME physician’s opinion, it is binding on the parties and the ALJ. See Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 9, 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 June 10, 1997 to the following parties:
Ufemia Velasquez, P.O. Box 212, Ft. Morgan, CO 80701
Ms. Erin Mercer, Workers Compensation Coordinator, EXCEL Corporation, C.S. 4100, Ft. Morgan, CO 80701
Gina Griego, Crawford Co., P.O. Box 340, Greeley, CO 80632
Esteban A. Salazar, Esq., 710 11th Ave., Ste. 107, Greeley, CO 80631 (For the Claimant)
Tama L. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondent)
By: ________________________________