Opinion
W.C. No. 4-408-729
August 15, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ). The respondents contend the ALJ erroneously awarded temporary disability benefits for the claimant's lost time from work to attend medical appointments for treatment of the industrial injury. We disagree and, therefore, affirm.
On October 29, 1998, the claimant suffered a compensable low back injury while employed as a delivery driver. The claimant's job duties required him to drive from Montrose to Gunnison each day to make deliveries. The claimant earned $65.74 per day.
Dr. Winslow released the claimant to return to regular employment in January 1999. However, the ALJ found the claimant's condition subsequently worsened, and he required further treatment which included spinal injections, an EMG, an orthopedic evaluation and acupuncture treatments. The claimant had medical appointments which prevented him from making the Montrose-Gunnison deliveries on 13 days between February 5, 1999, and September 30, 1999. The ALJ found the employer did not pay the claimant for the days he missed work to attend the medical appointments and did not provide any alternate job duties. Further, the ALJ found the claimant could not be in two places at one time, and the claimant's lost time from work was occasioned by the employer's business operations and not the fault of the claimant. Under these circumstances, the ALJ determined the claimant was disabled from performing his regular job on the days he was attending the medical appointments, and the ALJ ordered the respondents to pay temporary disability benefits for each of the 13 days the claimant missed work.
Relying on McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995), the respondents contend the Workers' Compensation Act (Act) is not intended to compensate an injured employee for lost time from work to attend medical appointments. The respondents also contend the claimant failed to prove he was "disabled" on the dates of the medical appointments and, therefore, no disability benefits are due. We reject these arguments.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that he left work as a result of the disability, that he was disabled for more than three regular work days, and that he suffered an actual wage loss. Section 8-42-103(1)(b), C.R.S. 1999. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). The term "disability" refers to the claimant's inability to perform his regular employment and encompasses two elements. See McKinley v. Bronco Billy's, supra. 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 the 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); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999); Chavez v. Manpower, W.C. No. 4-420-518 (May 11, 2000).
The principles of statutory construction require we construe the statute to give effect to the intent of the legislature. Larimer County v. Sinclair, 939 P.2d 515 (Colo.App. 1997). To discern the legislative intent, words and phrases should be interpreted according to their plain and obvious meaning.
Contrary to the respondents' arguments, § 8-42-103 does not exclude an award of temporary disability benefits where the claimant has "left work" to attend a medical appointment for treatment of the industrial injury. Further, we may not read non-existent provisions into the statute. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
To the contrary § 8-42-105(2)(c), C.R.S. 1999, expressly provides that temporary disability benefits may be suspended for the claimant's failure to attend an appointment with the attending physician. See also § 8-43-404(3), C.R.S. 1999. However, under the respondents' construction, the claimant would not receive temporary disability benefits for wages lost while attending an appointment with the authorized physician, but at the same time would be subject to a suspension of benefits for failing to attend an appointment with an authorized treating physician. We do not believe the legislature intended this result and, therefore, we reject the respondents' analysis.
The determination of whether the claimant has sustained his burden to prove an entitlement to temporary disability benefits is a question of fact for the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1999.
Here, there is substantial evidence to support the ALJ's determination that the claimant was medically restricted from performing his regular employment duties on the days he was receiving medical treatment for the industrial injury. As a result of the industrial injury, the claimant's employment contract required him to cooperate with and accept medical treatment from the authorized treating physicians. Cf. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993) (injuries sustained while attending authorized medical treatment are compensable under the quasi-course of employment doctrine). In the course of treatment for the industrial injury, the claimant was required to travel to Grand Junction and to undergo an EMG study, spinal injections, an orthopedic evaluation, and acupuncture treatments. The respondents do not dispute the treatment was reasonable and necessary to cure or relieve the effects of the industrial injury. Furthermore, because Dr. Winkler required the claimant to undergo this treatment and the claimant could not be at work at the same time he was attending the medical appointments, Dr. Winkler implicitly imposed "medical restrictions" which precluded the claimant from performing his regular work on the days of the appointments. In fact, Dr. Winkler expressly released the claimant from work to attend the medical appointments. ( See Dr. Winkler prescriptions. June 7, 1999; September 10, 1999). Moreover, the claimant's attendance at the medical appointments impaired his earnings. Therefore, the ALJ could, and did, find that the claimant established a temporary "disability" within the meaning of § 8-42-103.
Further, the employer does not dispute the ALJ's findings that no alternate job duties were offered to the claimant, and the claimant was not at fault for the lost wages. Under these circumstances, the record supports the ALJ's finding that the claimant established an entitlement to temporary disability benefits.
The respondents' further arguments to the contrary are unpersuasive. This case is factually undistinguishable from the situation where the claimant is released to return to work, or is provided modified employment at his pre-injury wage, but must miss a week of work to undergo diagnostic testing at a hospital. In both cases the medical treatment required for the industrial injury is the direct cause of the wage loss.
The respondents' reliance on McKinley v. Bronco Billy's, supra, is misplaced. Unlike the facts presented here, McKinley did not involve medical restrictions which directly interfered with the claimant's performance of the work. In McKinley the claimant suffered a compensable eye injury. The attending physician released the claimant to return to her regular employment, however, due to the injury, the claimant had difficulty driving to work. The claimant's job did not involve driving and the claimant did not dispute the physician's opinion that she was physically capable of performing her regular employment duties. Because there were no medical restrictions which impaired the claimant's ability to perform her regular employment, the McKinley court held that the claimant's inability to drive to work was insufficient to establish a "disability." However, in this case the medical requirement that the claimant be at the doctor's office instead of reporting to his scheduled work was the direct cause of his inability to complete his regular job duties.
IT IS THEREFORE ORDERED that the ALJ's order dated February 17, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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 August 15, 2000 to the following parties:
Larry Boddy, 1761 Kellie Dr., Montrose, CO 81401
Sprint Express, Inc., P. O. Box 60156, Grand Junction, CO 81506-8758
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Erika Moore, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: le