W.C. No. 4-747-660.Industrial Claim Appeals Office.
February 25, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated September 11, 2008, to the extent that it denied the claim for a period of temporary total disability benefits (TTD). We affirm.
The claimant was injured in an admitted work-related accident on November 9, 2007 and received TTD benefits through February 19, 2008. On February 20, 2008, the authorized treating physician released the claimant to return to work with no work restrictions and payments of TTD benefits were terminated. However, TTD benefits were later resumed when the same authorized treating physician opined that the claimant should remain off work beginning August 6, 2008. The ALJ found the claimant did not prove by a preponderance of the evidence that he was entitled to TTD benefits from February 20, 2008 through August 5, 2008 and this appeal followed.
The claimant first contends that the ALJ failed to apply the correct legal standard in denying the claimant TTD benefits. The claimant argues the ALJ erred when he stated that unless the record contains conflicting opinions from the attending physicians regarding a claimant’s release to work that the ALJ could not disregard the treating physician’s opinion. Here the ALJ found that there were no conflicting opinions from attending physicians regarding the claimant’s release to do his regular job for the period in question. We are not persuaded that the ALJ erred.
Section 8-42-105(3)(c), C.R.S. 2008, mandates termination of TTD benefits if “[t]he attending physician gives the employee a written release to return to regular
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employment.” Imperial Headware, Inc. v. Industrial Claim Appeals Office 15 P.3d 295 (Colo.App. 2000). The ALJ may not disregard the attending physician’s opinion that a claimant is released to return to regular employment. Id., citing Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Here, the disputed period of TTD benefits is from February 20, 2008 through August 5, 2008. The ALJ found, the record supports and the claimant has conceded that the attending physician gave the claimant a written release to return to regular employment on February 20, 2008. Exhibit A at 45. In addition, the ALJ found, the record supports and all parties concede that the attending physician opined that the claimant could not work beginning August 6, 2008. Exhibit A at 1.
However, the claimant contends that the ALJ erred in finding that there were no conflicting opinions from any authorized treating physicians from February 20 through August 5, 2008. The claimant argues that the attending physician’s opinions that the claimant could be released to full duty on February 20, 2008, but that later as of August 6, 2008 the claimant could not work are in conflict. The claimant contends that, absent a demonstration that the claimant’s condition worsened, if the claimant was unable to work as of August 6, 2008 he should not have been able to work as of February 20, 2008. The claimant maintains that the ALJ erred by failing to resolve that conflict. The claimant requests that the case be remanded to the ALJ to resolve alleged conflicts in the evidence regarding the claimant’s ability to perform full duty. In our view, no remand is necessary.
We agree that if there is conflict in the record regarding a claimant’s release to return to regular employment, the ALJ must resolve the conflict. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (opinion of the attending physician carries conclusive effect, but the ALJ must resolve conflicting evidence regarding whether a physician is an attending physician for purposes of § 8-42-105(3)(c)); Burns v. Robinson Dairy, Inc., supra (ALJ may not disregard attending physician’s release to regular employment unless there are conflicting opinions from attending physicians). The determination of whether a claimant has been released to return to work by the attending physician is a question of fact See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Thus, the ALJ has the discretion to resolve conflicts in the physician’s report and the discretion to determine if such conflicts exist. See generally Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (when treating physician issues conflicting opinions concerning maximum medical improvement, it is for the ALJ to resolve such conflict). An ALJ’s factual determinations are binding on review if there is substantial evidence in the record to support them. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
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Here, the ALJ did resolve the factual issue of whether there was a conflict in the record regarding a claimant’s release to return to regular employment. The ALJ specifically found there were no conflicting opinions. Finding of Fact § 9 at 3. In our view, there is substantial evidence in the record to support this factual finding. As noted above the attending physician released to full duty on February 20, 2008, but then later opined that the claimant could not work as of August 6, 2008 and referred the claimant for a surgical evaluation. Exhibit A at 1 45. The ALJ did not find a conflict in the attending physician’s opinions that the claimant was able to work at one point in time and then later was no longer able to work.
However, the claimant points out that in the attending physician’s reports dated April 12, 2008, May 9, 2008, June 6, 2008, and July 5, 2008, the section on whether the claimant was able to return to full duty was left blank. Exhibit A at 14. But we note that in those same reports the sections imposing restrictions were also left blank. Here, after the claimant was released to return to work with no restrictions on February 20, 2008 the attending physician continued the release to full duty at the next evaluation on March 12, 2008. Exhibit A at 37. In our opinion, the record does not compel a finding that there is a conflict in the attending physician’s opinions on the claimant’s ability to work.
The claimant further contends that the ALJ failed to resolve an alleged conflict in the attending physician’s reports created by the forms signed by the claimant during the disputed period of claimed TTD. The claimant notes that after several office visits the claimant signed forms instructing him not to do any lifting, bending or strenuous exercise “until your doctor says to do so.” Exhibit 20 at 83. However, here the doctor had specifically released the claimant to return to full duty employment. Therefore, in our opinion, there was no inherent conflict in the reports, but to the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). As we read the ALJ’s order, he was not persuaded that these general instructions in the medical forms created any conflicting opinions by the attending physician on the claimant’s ability to perform full duty. Further, the claimant appears not to have been in any confusion for in his own testimony he confirmed that from February 20, 2008 until August 6, 2008 the attending physician did not impose any written work restrictions. Tr. at 49.
Section 8-42-105(3)(c), C.R.S. 2008, provides that a claimant’s entitlement to TTD benefits will terminate when the attending physician gives the employee a written release to return to regular employment. That occurred here and therefore, the respondents met their burden of proof to terminate temporary disability benefits under § 8-42-105(3)(a) as of February 20, 2008. The ALJ then found that the claimant did not prove by a preponderance of the evidence that he was entitled to TTD benefits from
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February 20, 2008 through August 5, 2008. The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Here the ALJ might have viewed the evidence cited by the claimant as a conflict in the attending physician’s opinions but he did not do so. Therefore, we are not persuaded that the ALJ erred.
The claimant argues that the ALJ did not make any findings regarding the duties of the claimant’s regular employment and that the ALJ should address this issue on remand. In our opinion, again no remand is necessary. However, as noted above § 8-42-105(3)(c), mandates termination of TTD benefits if “[t]he attending physician gives the employee a written release to return to regular employment” and the ALJ may not disregard the attending physician’s opinion that a claimant is released to return to regular employment by an examination of the duties of the claimant’s regular employment. Therefore, an examination of the claimant’s duties is not necessary where, as here, the ALJ found that the attending physician had released the claimant without work restrictions. Therefore, we perceive no reason to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued September 11, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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HAVEN JOE, TEEC NOS POS, AZ, (Claimant).
HARRISON WESTERN CONSTRUCTION CORP, Attn: GLEN SKIDMORE, LAKEWOOD, CO, (Employer).
NATIONAL UNION FIRE INSURANCE CO, Attn: ROSIE VARELA/DOREEN O’MALLEY, C/O: AIG CLAIM SERVICES, SHAWNEE MISSION, KS, (Insurer).
DAWES AND HARRISS BLOODSWORTH, P.C., Attn: GAIL C HARRISS, ESQ., DURANGO, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: MATTHEW C HAILEY, ESQ., DENVER, CO, (For Respondents).
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