Opinion
W.C. No. 4-349-190
December 23, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ). We affirm.
The ALJ found that the claimant sustained a compensable injury in April 1997. On conflicting evidence, the ALJ determined that the claimant was not physically restricted by any of his treating physicians until December 1997. In the interim, the claimant quit his job as a mechanic with the respondent and held several other jobs as a mechanic. Further, the ALJ found that the claimant never gave the respondent an opportunity to accommodate his restrictions, and the respondent would have done so. Under these circumstances, the ALJ concluded that the claimant was not entitled to temporary total disability benefits. Essentially, the ALJ found that the claimant was not in any way disabled from performing his regular employment until December 1997.
The ALJ also concluded that treatment provided by Dr. Rook was not authorized. In support, the ALJ found that the claimant's attorney first referred the claimant to Dr. Rook. Further, the ALJ determined that the treating physician's referral to Dr. Rook was a product of the claimant's request for the referral.
The claimant filed a general petition to review which contains no specific allegations that the ALJ's order was erroneous. Further, the claimant did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
Insofar as the claimant is asserting that the denial of temporary disability benefits was erroneous, we disagree. A claimant is not entitled to temporary disability benefits unless the effects of the injury render him unable to return to work and perform his usual duties. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Here, the ALJ found that the claimant remained capable of performing his regular job duties for several weeks after the industrial injury and terminated his regular employment for reasons unrelated to the injury.
Further, the ALJ found that the attending physicians issued conflicting opinions concerning the claimant's ability to perform regular employment prior to December 1997. The ALJ resolved these conflicts in favor of the respondents, and we are not at liberty to interfere with the ALJ's credibility determinations or her resolution of conflicts in the evidence. Section 8-43-301(8), C.R.S. 1998. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Moreover, the ALJ's findings support the conclusion that the claimant failed to prove he was temporarily disabled prior to December 1997.
Neither is there any error in the ALJ's denial of temporary disability benefits after the imposition of restrictions in December 1997. As we understand the ALJ's order, she has determined that, because the claimant quit his job with the respondent, he was "at fault" for separation from the employment out of which the injury arose. Further, the ALJ credited evidence that the claimant would have remained employed within his restrictions had he not left the employment. The ALJ's denial of benefits in these circumstances is consistent with our interpretation of PDM Molding, Inc. v. Stanberg, supra. See Strain v. Intermountain Steel Manufacturing, Inc., W.C. No. 4-207-093 (February 22, 1996), set aside and remanded Strain v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1901, July 24, 1997) (not selected for publication) (applying PDM to circumstances similar to those here, but remanding for additional findings of fact concerning the cause of claimant's wage loss).
Further, the record supports the ALJ's finding that Dr. Rook is not an authorized treating physician. Generally, referrals made in the normal progression of authorized treatment are compensable. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1995). In determining whether a referral was in the authorized progression of treatment, the ALJ may consider whether the authorized treating physician made the referral as a result of his independent medical judgment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). These questions are issues of fact for determination by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, there is substantial evidence the claimant was not referred to Dr. Rook as part of the normal progression of treatment. Rather, the ALJ credited evidence that the referral to Dr. Rook originated with the claimant's attorney, and was not the result of an exercise of independent judgment by the treating physician. Cf. Durrough v. Bridgestone/Firestone, W.C. No. 4-277-896 (June 30, 1997).
IT IS THEREFORE ORDERED that the ALJ's order dated February 13, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1998.
Copies of this decision were mailed December 23, 1998 to the following parties:
Jonathan Martinez, 5795 Southmoor Dr., #3, Fountain, CO 80817
John Henderson, 225 Fairfax, Security, CO 80911
Valley Auto Repair, 7390 South Highway 85/87, Fountain, CO 80817
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For Claimant)
Joan A. Goldsmith, Esq., 6665 Delmonico, Ste. D, Colorado Springs, CO 80919 (For Respondents)
By: ___________