Opinion
W.C. No. 4-399-874
June 16, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded medical benefits and temporary total disability benefits. The respondents contend the evidence does not support the ALJ's conclusion that the medical treatment was authorized because the right of selection passed to the claimant. The respondents further contend there is no evidence the claimant was temporarily and totally disabled because the claimant failed to produce evidence of medical restrictions. We affirm.
The claimant sustained compensable injuries on April 30, 1998, when he was battered by his immediate supervisor. Both the claimant and a coworker testified the supervisor struck the claimant's face four times with a closed fist. The claimant stated that his eye was bleeding when he left the scene of the attack. (Tr, pp. 22, 34).
The claimant also testified that he was required to report injuries to his supervisor. The claimant called the employer's place of business of on May 1, 1998, in an effort to obtain the name of a physician to treat his injuries. However, the office manager stated he would not speak to the claimant, that the claimant was not allowed on the employer's premises, and the claimant was "through with the company." The claimant tried to obtain the name of a physician on a subsequent occasion, but the office manager hung up on him. (Tr. pp. 35, 36, 43).
Because the claimant was unsuccessful in obtaining the name of a physician from the employer, he selected Dr. Dotson from the employer's medical benefits book. Dr. Dotson rendered conservative treatment and referred the claimant to Dr. Poole, a chiropractor. (Tr. pp. 9-10).
The ALJ concluded that the treatment provided by Dr. Dotson and Dr. Poole was authorized. Specifically, the ALJ found the claimant had "no choice but to leave the premises" immediately after the assault, and "attempted to establish contact with the appropriate individuals [with the employer], who rebuffed his repeated attempts to seek authorized medical attention." The ALJ also found the claimant sustained injuries to his head and neck as a result of the attack, and was entitled to temporary total disability benefits from April 30, 1998 through June 15, 1998.
I.
On review, the respondents first contest the ALJ's determination that the treatment provided by Dr. Dotson and Dr. Poole was authorized. The respondents argue the claimant failed to notify them that medical treatment was required. We find no error.
Section 8-43-404(5)(a), C.R.S. 1999, provides the employer or insurer has the right to select the treating physician in the first instance. However, the statute also provides that if "the services of a physician are not tendered at the time of the injury, the employee shall have the right to select a physician or chiropractor."
In Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987), the court interpreted § 8-43-404(5)(a) as requiring the employer to tender medical treatment "forthwith upon notice of an injury," or allow the right of selection to pass to the claimant. We have held that an employer has sufficient "notice of an injury" to designate a treating physician when it has "some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim." Grove v. Denver Oxford Club, W.C. No. 4-293-338 (November 14, 1997); see also Jones v. Adolf Coors Co., 689 P.2d 681 (Colo.App. 1984).
Here, the employer was certainly aware of the claimant's injury at the moment it happened because the claimant's supervisor was the assailant. Moreover, the claimant, whom the ALJ found credible, testified that when he left the employer's premises his eye was bleeding. Further, when the claimant called the employer the next day in an effort to obtain the name of a treating physician, the employer's office manager refused to speak to the claimant. Under these circumstances, there is ample evidence that the employer was aware the claimant sustained an injury, and that the circumstances would have alerted a reasonably conscientious manager that the claimant might need medical treatment. Finally, the claimant afforded the employer an opportunity to designate a treating physician, but the employer refused to communicate with the claimant. Under these circumstances, the evidence fully supports the ALJ's determination that the right of selection passed to the claimant under the principles set forth in Rogers v. Industrial Claim Appeals Office, supra.
We recognize the claimant did not give written notification of the injury to the employer. However, § 8-43-404(5)(a) does not require the claimant to give written notification of the injury in order to trigger the employer's duty to designate a treating physician. Indeed, the sanction for a claimant's failure to give written notification of an injury is the potential loss of "one day's compensation for each day's failure to" report. Section 8-43-102(1)(a), C.R.S. 1999.
II.
The respondents next contend the claimant failed to present substantial evidence to establish the injury resulted in a temporary wage loss. The respondents argue the claimant failed to present evidence of medical restrictions, and failed to present any evidence of wage loss which can be connected to the injury. We reject these arguments.
In order to establish the right to temporary disability benefits the claimant must prove that the injury "caused disability." Section 8-42-103(1), C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term disability, as used in workers' compensation cases, includes two elements. The first element is "medical incapacity" evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by a claimant's inability to "resume his or her prior work." Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of "disability" may be evidenced by a complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
The question of whether the claimant has proven the existence of restrictions comprising the "medical incapacity" element of disability is one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Moreover, the Lymburn court specifically held that neither § 8-42-103 nor § 8-42-105, C.R.S. 1999, requires the claimant to present "a physician's opinion with respect to the initial entitlement to receive TTD benefits." Rather, the court observed that "lay evidence has previously been accepted as sufficient proof of both causation and the inability to work." Id. at 833.
For these reasons, we reject the respondents' assertion that claimant was required to present proof of medical restrictions imposed by a physician in order to obtain temporary disability benefits. Although the respondents attempt to distinguish Lymburn based on its facts, we find their argument unpersuasive. The clear holding in Lymburn is that lay testimony may be sufficient to establish the claimant's inability to work, and there is no requirement for proof of medical restrictions. The treating physician's opinion is binding with respect to termination of temporary disability benefits, not the commencement of such benefits.
Here, the claimant testified that by the time he visited Dr. Dotson on May 4, 1998, he was suffering unbearable neck pain, and his girlfriend had to drive him to the doctor's office. He further testified that he was off work for two and a half months. The ALJ plausibly inferred from this testimony that the claimant's pain was sufficient to preclude him for performing his regular employment as a salesman, and that he sustained a wage loss until he returned to work in June 1998. The fact that other inferences were possible affords no basis for relief on appeal.
We do note that Conclusion of Law 3 states the claimant is entitled to temporary disability benefits from "April 30, 1998, to May 1, 1998." However, this appears to be a typographical error in light of the ALJ's "order" requiring the payment of temporary total disability benefits from April 30, 1998 through June 15, 1998.
IT IS THEREFORE ORDERED that the ALJ's order dated July 28, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 16, 2000 to the following parties:
Dennis Cunningham, 679 Bridger Dr., Colorado Springs, CO 80909
Oak Creek Village, American Home Star, 2450 S. Shore Blvd., #300, League, TX 77573
American Home Assurance, Carol Keim, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064
James R. Koncilja, Esq., 125 W. "B" St., Pueblo, CO 81003 (For Claimant)
Suzanne M. Gall, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: _______________________________________________