Opinion
W.C. No. 4-599-177.
September 20, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated July 19, 2006, that denied and dismissed their request to terminate temporary total disability (TTD) benefits on June 22, 2004. We affirm.
We previously remanded this matter for additional findings concerning the effect of a treating physician's release of the claimant to regular duties on June 22, 2004. On remand, the ALJ found that Dr. Bradley's June 22, 2004, release to regular employment conflicts with his prior determinations to the effect that the claimant could not return to his regular work as a truss builder. The ALJ further found that a subsequent letter from Dr. Bradley did not report that the claimant's work-related condition improved. Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 20. The ALJ found Dr. Bradley's previous work restrictions to be "more persuasive than his unexplained full-duty release to return to work" and, also, found the claimant to remain disabled from his regular work. Order at 5, ¶ 21.
The respondents assert that Dr. Bradley's June 22, 2004, report clearly released the claimant to his regular duties and, therefore, TTD benefits must terminate as of that date pursuant to § 8-42-105(3)(c), C.R.S. 2006. The respondents also appear to argue that Dr. Bradley's opinion as to the release of a claimant to regular employment is conclusive absent conflicting opinions by other attending physicians.
Section 8-42-105(3)(c) provides that temporary total disability benefits cease when the attending physician gives the employee a release to regular employment. Thus, the attending physician's opinion concerning the claimant's ability to return to regular employment is binding on the parties. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). In Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), the court of appeals held that the opinion of the attending physician binds an ALJ with respect to the claimant's ability to perform regular employment. However, the court went on to indicate that the ALJ retains fact-finding authority where multiple attending physicians offer conflicting opinions concerning the claimant's ability to return to regular employment. Similarly, in Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996), the court indicated that an ALJ possesses fact-finding authority where a treating physician offers conflicting opinions concerning whether or not the claimant has reached maximum medical improvement.
Thus, the determination of whether a claimant is released to return to work by the attending physician presents a question of fact for the ALJ, who has discretion to resolve any conflicts in the physician's report. Imperial Headware, Inc. v. Industrial Claim Appeals Office, 15 P.3d 295, 296 (Colo.App. 2000). The ALJ made the factual determination that there were discrepancies in Dr. Bradley's opinion as to whether the claimant could return to regular employment. The record supports that finding.
The ALJ found that Dr. Bradley's release of the claimant to regular duties on June 22, 2004 conflicted with his earlier determinations that the claimant was not able to return to truss-building duties. In support of his finding that Dr. Bradley's opinion regarding the claimant's return to work conflicted, the ALJ further found that "[n]either the June 22, 2004, notes nor the subsequent March 20, 2005, letter by Dr. Bradley explain why claimant's condition . . . had improved so that claimant could then return to full-duty work." Order at 4, ¶ 20. Dr. Bradley issued several notes documenting his clinical findings, including various progress notes containing both subjective and objective reports of the claimant's condition, with corresponding physician's reports releasing the claimant to work with restrictions. Exhibit F. The progress notes, including one dated June 22, 2004, consistently report the claimant having a sore back.
Dr. Bradley issued two reports on June 22, 2004. The respondents rely on one of the June 22, 2004 reports which is a one-page physician's report indicating that the claimant is able to return to full duty on June 22, 2004. Exhibit F. The other June 22, 2004 report authored by Dr. Bradley is a progress note that notes the claimant is not at MMI, needs an MRI, is unable to exercise because of pain in his lower back, has swelling in the lower back and has daily pain "6-9 in low back."
Dr. Bradley's subsequent letter dated March 20, 2005, states that, without additional medical records, he could not determine whether the claimant's complaints from March 2, 2005, which included soreness in both the lumbar and thoracic regions of his back, were from a car accident on January 5, 2004, or his industrial accident on November 25, 2003. Exhibit 2 at 48. The ALJ made related findings to the effect that Dr. Bradley did not find the claimant's condition to have improved to where he could return to regular employment. The ALJ found Dr. Bradley's previous work restrictions more persuasive that his unexplained full-duty release to return to work on June 22, 2004. Therefore, having resolved the conflicts found in Dr. Bradley's reports the ALJ found that the claimant continued to be "disabled from his regular work." Order at 5, ¶ 21. These findings are supported by the record and are binding on review. See 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 July 19, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Robert Childers, Pueblo Truss Company, Pueblo, CO, Deanna Cuerden, Sierra Insurance Group, c/o/ GAB Robins, Denver, CO, Barkley D. Heuser, Esq., Colorado Springs, CO, (For Claimant).
John D. Sandberg, Esq., Lakewood, CO, (For Respondents).