Opinion
W.C. No. 4-259-670
February 26, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which denied his claim for temporary disability benefits commencing November 1, 1995. We affirm.
The ALJ found that the claimant sustained a compensable industrial injury on March 8, 1995. The industrial injury aggravated symptoms of a prior injury, and resulted in headaches, neck pain, and various other symptoms. Despite the industrial injury, the claimant continued his employment as a market researcher. However, the claimant's hours began to reduce in September 1995, and the claimant ceased work in November 1995. The claimant attributed the reduced hours and cessation of work to symptoms caused by the industrial injury.
The authorized treating physician for the injury was Dr. Lambden. Dr. Lambden prescribed various therapies to treat the claimant's symptoms, but the ALJ found that Dr. Lambden never restricted the claimant from performing his regular employment.
Under these circumstances, the ALJ denied the claim for temporary disability benefits commencing November 1, 1995. In so doing, the ALJ stated that there was no medical evidence indicating that the claimant was restricted from performing the duties of his regular employment. Consequently, the ALJ concluded that the claimant failed to satisfy his burden of proof to establish temporary disability.
On review, the claimant contends the ALJ erred as a matter of fact and law in denying the claim for temporary disability benefits. In support of this proposition, the claimant principally relies on a portion of Dr. Lambden's report of August 29, 1995. A section of this report, entitled "Functional History," states that the claimant must limit standing, driving, and walking. The claimant also cites medical evidence that he continued to experience symptoms after November 1995, and his own testimony that he was unable to perform the duties of his regular employment. We are not persuaded.
In Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff'd., Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication), we held that a claimant is not entitled to temporary disability benefits unless he produces evidence that the treating physician has medically restricted him from performing the duties of his regular employment. We reasoned that if the opinion of the treating physician that the claimant is able to perform regular employment is sufficient to terminate temporary disability benefits under § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.), the treating physician's opinion that the claimant has never been restricted from work is sufficient to preclude initiation of temporary disability benefits. In affirming our decision in Ray, the court of appeals relied on Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995). In Burns, the court stated that an ALJ is bound by the attending physician's opinion concerning the claimant's ability to return to employment, and a claimant's "self-evaluation of his ability to perform his job" is irrelevant and properly disregarded by the ALJ.
Further, we must uphold the ALJ's pertinent findings of fact if supported by the evidence. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). This standard requires us to view the evidence in a light most favorable to the prevailing party, and to 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).
Here, we agree with the respondents that the ALJ was not compelled to interpret Dr. Lambden's August 29 report as imposing medical restrictions on the claimant. Rather, the ALJ logically found that Dr. Lambden's reference the claimant's "functional history" pertained to the claimant's opinion of his own limitations, not medical restrictions imposed by Dr. Lambden. Moreover, the mere fact that the claimant continued to experience symptoms from the industrial injury did not require the ALJ to conclude that the claimant was medically restricted from performing his duties, and the claimant's own testimony concerning his ability to perform work is immaterial. Burns v. Robinson Dairy, supra.
It follows that there is substantial evidence to support the ALJ's conclusion that the claimant failed to prove his entitlement to temporary disability benefits. The mere fact that the evidence might have been construed differently provides no basis for appellate review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated August 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed February 26, 1997 to the following parties:
John Bridgewater, 1151 S. Taos Way, Denver, CO 80223
Information Research, Inc., 4505 S. Broadway, Englewood, CO 80110-5723
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Dr., Ste. 280, Denver, CO 80209 (For the Claimant)
Frank M. Cavanaugh, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
By: ___________________________________________