Opinion
W.C. No. 4-416-146
September 18, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) entered pursuant to our Order of Remand. The respondents contend the ALJ erroneously awarded temporary total disability benefits commencing March 14, 1999. We agree, and therefore, set aside the ALJ's order.
On October 16, 1998, the claimant suffered a compensable injury. The respondents admitted liability for temporary total disability benefits. The respondents filed a general admission of liability terminating temporary disability benefits effective March 14, 1999, on grounds the claimant failed to begin an offer of modified employment commencing March 15, 1999.
In an order dated September 10, 1999, the ALJ found the respondents failed to prove they complied with the Rules of Procedure, Part IX(C)(1)(d), 7 Code Colo. Reg. 1101-3 at 34, in unilaterally terminating temporary disability benefits. The ALJ also refused to terminate temporary disability benefits under § 8-42-105(3)(d)(I), C.R.S. 1999. Therefore, the ALJ ordered the respondents to reinstate temporary total disability benefits retroactive to March 14, 1999. The respondents timely appealed the ALJ's order.
On appeal, we concluded the record supported the ALJ's finding that the respondents' unilateral termination of benefits did not comply with Rule IX(C)(1)(d). However, we determined the ALJ erred in finding there was "no evidence" the attending physician gave the claimant a release to return to modified work for purposes of terminating temporary disability benefits under § 8-42-105(3)(d)(I). Consequently, we remanded the matter to the ALJ for the entry of a new order concerning whether temporary disability benefits terminated by operation of § 8-42-105(3)(d)(I).
On remand, the ALJ issued the order on review. The ALJ found there was "no evidence" of the claimant's work restrictions in October 1998 when he was released to modified employment. The ALJ also determined that evidence of the claimant's work restrictions in April and July 1999 were not relevant to whether the March 1999 offer of modified employment was within the claimant's medical restrictions. Under these circumstances, the ALJ determined there was "no credible evidence" from which to find the respondents' written offer of modified employment was within the claimant's medical restrictions. Consequently, the ALJ ordered the respondents to reinstate temporary disability benefits commencing March 14, 1999. The respondents timely appealed.
I.
The respondents contend, inter alia, that the ALJ erroneously found "no evidence" the modified job offer was within the claimant's medical restrictions for purposes of terminating benefits under § 8-42-105(3)(d)(I). Specifically, the respondents argue that Dr. Holmboe's written approval of the job duties listed in the written offer of modified employment is sufficient evidence concerning the claimant's work restrictions. We agree with the respondents.
Section 8-42-105(3)(d) (I) provides that temporary disability benefits terminate when the:
"attending physician gives the claimant a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."
Our courts have previously held that the attending physician's opinion concerning the claimant's ability to perform regular or modified work is dispositive for purposes of terminating temporary disability benefits under § 8-42-105(3) unless there are multiple attending physicians with conflicting opinions. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) ; Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995) (concerning physician's release to regular employment). It follows that in absence of conflicting medical opinions, the ALJ is not free to reject the attending physician's opinion that the claimant is capable of performing modified employment. To the contrary, where the attending physician releases the claimant to modified employment, the issue is whether the modified employment is consistent with the physician's assessment of the claimant's physical capabilities.
The March 1999, written offer of modified employment stated the claimant's primary job duties would be:
"assist with daily office filing
alphabetically file resumes
assist with daily office sorting
organize resumes by job description
assist with daily office organizing
clean and organize office supplies
mail pieces
stuff envelopes with mail pieces
sort incoming and out going mail
type reference checks of potential new hires
assemble start packages
photocopy time cards"
The job also required the claimant to perform "light duties as assigned by current supervisor."
Page 2 of the written employment offer contains evidence Dr. Holmboe approved the offered job duties by his signature on March 12, 1999. Regardless of the absence of evidence concerning specific outside limits on lifting, bending, standing, pushing/pulling, reaching, or grasping which were imposed by Dr. Holmboe, his express approval of the job duties offered by the respondents reflects his opinion that the claimant is physically capable of performing the employment offered by the respondent and that the duties are within the claimant's restrictions. Thus, the record contains sufficient evidence of the claimant's physical abilities and limitations for purposes of § 8-42-105(3)(d)(I).
We also note that there is no finding or assertion that multiple attending physicians issued conflicting opinions concerning the claimant's medical restrictions. Neither is there any finding that the document purporting to contain Dr. Holmboe's signature approving the job duties is not genuine, or that Dr. Holmboe issued inconsistent opinions. Under these circumstances, Dr. Holmboe's opinion that the job offer did not exceed the claimant's physical restrictions is binding on the parties and the ALJ.
Further, the claimant admitted that he received a written release to modified employment from Dr. Holmboe. (Tr. pp. 13, 16). Thus, the record compels a finding that the claimant's attending physician gave the claimant a release to modified employment and that such employment was offered by the respondents within the meaning of § 8-42-105(3)(d)(I).
Moreover, the claimant does not dispute that he did not begin the offer of modified employment, and there is no finding or assertion that the job was otherwise objectively unreasonable. See Ragan v. Temp Force, W.C. No. 4-216-579 (June 7, 1996) (refusal to begin modified employment does not terminate benefits where the claimant did not have transportation to remote job site); Simington v. Assured Transportation Delivery, W.C. No. 4-318-208 (March 19, 1998); Belanger v. Keystone Resorts, Inc., W.C. No. 4-250-114 (October 9, 1997). Under these circumstances, the record compels the conclusion temporary disability benefits terminated March 14, 1999, by operation of § 8-42-105(3)(d)(I). Therefore, the ALJ erroneously ordered the respondents to reinstate temporary disability benefits.
In view of our disposition we need not consider the respondents' remaining arguments in support of their contention that the ALJ erroneously awarded additional temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 23, 2000, is reversed.
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. 2000. 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 September 18, 2000 to the following parties:
Alvaro Luna, 4395 W. Exposition Ave., #3, Denver, CO 80219
Heather Bonney, Aerotek, Inc. d/b/a On Site Commercial Staffing, 921 Elkridge Landing Rd., #100, Linthicum, MD 21090
Reliance National Indemnity, 10475 Park Meadows Dr., #100, Littleton, CO 80124-5454
Diane Jackson, Presidium, Inc./Cambridge, 12005 Ford Rd., Lock Box 44, #700, Dallas, TX 75234-1230
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy