Opinion
W.C. No. 4-254-794
September 27, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied the claim for temporary disability benefits from June 29, 1995 through December 19, 1995. We affirm.
The ALJ's pertinent findings of fact may be summarized as follows. On May 15, 1995, the claimant sustained a compensable back injury in the course of his employment as an apprentice electrician. The claimant remained off work pursuant to the restrictions of the treating chiropractor, Dr. Ray, until June 20, 1995.
However, on June 16, 1995, Dr. Ray issued a "work release slip" allowing the claimant to return to work at "light duty." Listed beneath the section of the work release labeled "light duty" were various possible restrictions. One set of restrictions was as follows:
"___ Straight back lifting limit ___ lbs., avoid bending, and stooping"
The ALJ found that Dr. Ray placed a check mark in the space to the left of this restriction, and entered a "hand-written notation of a 50 pound lifting restriction." Dr. Ray reiterated the "50 lb. lifting limit" in another space at the bottom of the release form.
Following issuance of the June 16 release, the claimant returned to work until he quit on June 28, 1995. The ALJ found that during this period the employer honored the claimant's fifty-pound lifting restriction and provided assistance whenever the claimant was required to lift more than fifty pounds.
At the close of the hearing, the claimant argued that the employer did not honor Dr. Ray's restrictions concerning bending and stooping. Therefore, the claimant reasoned that he was entitled to temporary disability benefits following the separation from employment. However, the ALJ rejected this argument and found that the release form was "ambiguous as to whether or not, in addition to the 50 pound lifting limit, there were restrictions on the claimant to avoid bending and stooping." The ALJ resolved this ambiguity against the claimant and found that Dr. Ray did not intend to impose restrictions against bending and stooping. In support of this conclusion, the ALJ cited the fact that "all of the parties treated the form as imposing only a 50 pound lifting limit and no one discussed or dealt with" the supposed restrictions against bending and stooping. The ALJ also relied on the absence of other evidence that Dr. Ray intended to impose restrictions against bending and stooping.
On review, the claimant challenges the ALJ's findings of fact insofar as they determine that Dr. Ray's release form imposed only a fifty-pound lifting restriction. The claimant asserts that the form clearly provides for restrictions against bending and stooping, and that the work provided by the employer violated these restrictions. We reject the claimant's argument.
The ALJ correctly held that, in order to terminate temporary disability benefits under § 8-42-105(3)(b), C.R.S. (1996 Cum. Supp.), the "modified employment" provided to the claimant must be within the restrictions imposed by the treating physician. Herrera v. Thompson School District, W.C. No. 4-114-576, May 18, 1994. Further, although the ALJ is not free to deviate from restrictions imposed by the treating physician, the questions of whether and to what extent such restrictions exist, and whether the employment provided to the claimant is within those restrictions, are questions of fact. Herrera v. Thompson School District, supra; see also, Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995) (an ALJ may resolve conflicting opinions between attending physicians concerning the claimant's ability to return to work).
Because the issue is factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In this regard, we are obliged 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. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
The claimant's argument notwithstanding, the record supports the ALJ's determination that Dr. Ray's form was ambiguous concerning whether or not the claimant had restrictions against stooping and bending. It is unclear from the form whether the imposition of a lifting restriction automatically requires restrictions against stooping and bending. Although that is one possible interpretation, it is also possible to infer that the form listed three separate restrictions together, and that Dr. Ray would have circled restrictions against stooping and/or bending had he intended to impose them. In this regard, it is significant that the form also groups other types of restrictions together, including limitations "for standing, walking or sitting."
Since we agree with the ALJ that the meaning of the form is subject to varying inferences, it was proper for the ALJ to consider extrinsic evidence to assist him in ascertaining Dr. Ray's intent. Cf., Three G Corp. v. Daddis, 714 P.2d 1333 (Colo.App. 1986) (if contract language is ambiguous, it is proper to resort to extrinsic evidence to ascertain the parties' intent). Here, as the ALJ found, the record contains evidence that the claimant returned to work with a fifty-pound lifting restriction, and that the employer accommodated this restriction. However, the record contains no evidence that the claimant informed the employer that he was under a restriction against stooping and bending, or that the employer was violating such restrictions. To the contrary, the ALJ found from conflicting evidence that the claimant quit his work for personal reasons, not due to any alleged violation of his restrictions by the employer.
Thus, there is extrinsic evidence in the record that the parties operated with the understanding that Dr. Ray did not impose any restrictions other than the fifty-pound lifting restriction. This assumption is consistent with the history which the claimant gave to Dr. Gibson. Consequently, the record contains substantial evidence supporting the inference that Dr. Ray did not impose any restrictions against the claimant other than the fifty-pound restriction. Cf. Erdenberger, Inc. v. Partek North America, Inc., 865 P.2d 850 (Colo.App. 1993) (when interpreting ambiguous contracts, it is proper to examine the conduct of the parties as a reliable indicator of intent).
We have also considered the claimant's assertion that Finding of Fact 11 is improper because, during closing arguments, counsel for claimant argued that Dr. Ray's form imposed restrictions against stooping and bending. However, we understand the ALJ's finding that "all of the parties treated the form as imposing only a fifty pound lifting limit" and did not "discuss" the avoidance of bending and stooping, as a reference to the conduct of the parties prior to the hearing, not a reference to arguments which were made at the hearing. Thus, the finding is not erroneous, and we will not set it aside simply because it lacks some element of clarity. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ is not held to a crystalline standard in expressing findings of fact).
IT IS THEREFORE ORDERED that the ALJ's order dated March 7, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL 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 September 27, 1996 to the following parties:
William J. Rodriguez, 1941 Lilly Dr., Thornton, CO 80229
Ray Noble, Noble Electrical Contracting, 747 Sheridan, #7A, Denver, CO 80214
Richard Nustad, Hawkeye-Security Ins. Co., P.O. Box 150, Denver, CO 80217-5150
Mark A. Simon, Esq., 501 S. Cherry St., Ste. 820, Denver, CO 80222 (For the Claimant)
David L. Lavinder, Esq., 12835 E. Arapahoe Rd., Tower I, Ste. 200 West, Englewood, CO 80112 (For the Respondents)
By: ________________________