Opinion
W.C. No. 4-274-962
May 21, 1998
FINAL ORDER
This matter was transmitted to the Industrial Claim Appeals Panel for review of an order of Administrative Law Judge Rumler (ALJ). We affirm.
The claimant suffered a work related injury on November 3, 1995. Dr. Dietz restricted the claimant to modified employment. However, the ALJ found that the claimant continued to perform her regular employment until December 1, 1995, when the claimant voluntarily resigned for reasons unrelated to the industrial injury. Further, the ALJ rejected Dr. Parry's opinion that the claimant was physically unable to return to her regular work commencing March 19, 1996. Therefore, in an order dated May 28, 1996, the ALJ denied a claim for temporary disability benefits.
The claimant timely appealed the order and alleged that the ALJ erred in failing to credit Dr. Parry's opinion that she is medically restricted from performing her regular employment. Therefore, the claimant argued that the ALJ erred in denying the claim for temporary disability benefits commencing March 19, 1996.
Based on § 8-42-105(3)(c), C.R.S. 1997, and Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), we concluded that the attending physician's opinion of the claimant's inability to perform her regular employment is dispositive, unless there are multiple attending physicians with conflicting opinions. Consequently, in an Order of Remand dated October 29, 1996, we set aside the ALJ's order in part, and remanded for entry of a new order based upon whether Dr. Parry was the claimant's "attending physician" as March 19, 1996.
On remand, the ALJ entered an order dated March 17, 1998. The ALJ found that Dr. Parry was an attending physician as of March 19, 1996. The ALJ also found that there were not multiple attending physicians with conflicting opinions concerning the claimant's medical restrictions as of March 19, 1996.
However, the ALJ noted that subsequent to our Order of Remand, the Court of Appeals issued Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997), which held that there is no requirement that the claimant present medical evidence in the form of an opinion from the attending physician, to establish that she is temporarily disabled from performing her regular employment. The ALJ determined that insofar as Lymburn allowed her to reject Dr. Parry's opinion of the claimant's medical limitations, the ALJ did not find Dr. Parry's opinions credible, and the claimant failed to sustain her burden to prove her entitlement to temporary disability benefits commencing March 19, 1996.
The ALJ also found that the parties agreed that the case be returned to us for further review without the filing of a petition to review the March order. Accordingly, on March 26, 1998, the ALJ transmitted the record to this office.
I.
Initially, we note that we lack jurisdiction to review an order in the absence of a timely petition to review. We are also mindful that our jurisdiction is limited to the review of final orders. A final order is an order which requires the respondents to pay a penalty or benefit or denies a claimant a benefit or penalty. Section 8-43-301(2), C.R.S. 1997. Section 8-43-301(2), C.R.S. 1997; Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). The ALJ's March 1998 order does not expressly award or deny temporary disability benefits.
However, we note that the May 28, 1996 order was not set aside in its entirety. As we interpret the March 19, 1998 order, the ALJ made additional findings of fact as we directed. Further, the ALJ has, in effect, re-adopted her conclusions of law from the May 1996 order, insofar as they are consistent with Lymburn, and then returned the case to this office for completion of our review. We conclude that this procedure is not inconsistent with our remand directions, and is permissible under § 8-43-301(8) and (9), C.R.S. 1997. Under these circumstances, the filing of another petition to review is unnecessary because the claimant's petition from the March 1996 order is still before us. We further conclude that the ALJ's March 1998 order, read in conjunction with the May 1996 order and Lymburn, denies the claimant benefits.
II.
In Lymburn, the court held that Burns v. Robinson Dairy, Inc., supra, applies to the termination of temporary disability benefits under § 8-42-105(3)(c), C.R.S. 1997, and not whether the claimant has sustained her burden to prove an initial entitlement to temporary disability benefits. See also Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Consequently, the Lymburn court concluded that the attending physician's opinion of the claimant's ability to perform regular or modified employment is neither required or dispositive of whether the claimant has established a "disability" for purposes of receiving temporary disability benefits.
Here, the ALJ determined that the claimant failed to establish her entitlement to temporary disability benefits prior to March 19, 1996. Furthermore, insofar as the claimant relied upon Dr. Parry's opinion to prove that she was disabled from performing her regular employment commencing March 19, 1996, the ALJ did not find Dr. Parry's opinions credible. The ALJ could discredit Dr. Parry's opinion, see Lymburn, supra, and this credibility determination supports the conclusion that the claimant failed to sustain her burden to prove that she was "disabled" commencing March 19, 1996. Therefore, the ALJ did not err in denying the claim for temporary disability benefits commencing March 19, 1996.
IT IS THEREFORE ORDERED that the ALJ's order dated March 17, 1998, is affirmed insofar as it denied temporary disability benefits commencing March 19, 1996.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona HalseyNOTICE 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 21, 1998 to the following parties:
Margaret A. Meagher, 2324 Grape St., Denver, CO 80207
City County of Denver, 1445 Cleveland Pl., Room 200, Denver, CO 80202-5306
Olivia Hudson Smith, Esq., City County of Denver, 1445 Cleveland Place, Annex 1, # 200, Denver, CO 80202
Sally L. MacLuckie, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For the Claimant)
BY: _______________________