Opinion
W.C. No. 4-320-928
April 21, 1999.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge
Rumler (ALJ), which awarded claimant temporary total disability benefits for several periods of time. The respondent contends the ALJ erred in finding that the claimant's temporary wage loss was causally connected to the industrial injury. We affirm.
The claimant was a long haul truck driver. He sustained a compensable occupational disease which resulted in episodes of rectal pain and bleeding. The disease was associated with long hours of driving.
The respondent admitted liability for various periods of temporary total disability commencing August 1996 through January 14, 1997. In January 1997, the claimant began duties as a short haul truck driver for the respondent-employer. However, the ALJ found there was not much difference between the hours the claimant drove as a long haul driver and those he drove as a short haul driver.
On April 23, 1997, the claimant was laid off by the respondent-employer. During the layoff the claimant underwent surgery for the occupational disease. Subsequently, the claimant worked for the respondent-employer as a short haul driver from May 27 through June 3, 1997; June 30 through July 2, 1997; July 9 through July 16, 1997; and August 1 through August 6, 1997. The claimant obtained work as a union business representative commencing in September 1997. The issue concerns the claimant's entitlement to temporary total disability benefits for the periods of unemployment between April 23, 1997 and September 1997.
In resolving this issue, the ALJ credited the July 16, 1998, report of one of the claimant's treating physicians, Dr. Channel. Dr. Channel noted that the claimant's pain recurred with prolonged sitting and driving, and opined that the claimant "was unable to resume his truck driving duties from the time in question January 14, 1997, through the present time." The ALJ further credited the claimant's testimony that the recurrence of rectal bleeding and pain rendered him unable to work during the disputed periods of time. Consequently, the ALJ concluded that the claimant's wage loss was to some degree caused by the industrial injury and she awarded temporary disability benefits for the disputed periods.
On review, the respondent contends the evidence does not support the ALJ's conclusion that the claimant's wage loss was to some degree caused by the occupational disease during the disputed periods of time. The respondent argues that because the claimant returned to work in January 1997, and repeatedly returned to work as a short haul driver after being laid off on April 23, 1997, his benefits were properly terminated under § 8-42-105(3)(b), C.R.S. 1998 (return to regular or modified employment). Further, the respondent argues that neither the testimony of the claimant nor the report of Dr. Channel affords a basis for finding that the claimant reestablished a causal connection between the disease and wage loss for each successive period. We disagree.
Section 8-42-105(3)(b) permits termination of temporary total disability benefits when the claimant "returns to regular or modified employment." We previously ruled that termination of benefits under subsection (3)(b) requires that the duties of the "regular" or "modified" employment be within the physical restrictions imposed by the treating physician. Ziel v. Eastman Kodak Co., W.C. No. 4-313-166 (June 12, 1998) ; Herrera v. Thompson Valley School District, W.C. No. 4-114-576 (May 18, 1994). This is true because § 8-42-105(3) reflects the General Assembly's intent to limit the scope and frequency of disputes concerning the duration of temporary total disability benefits "by treating the opinion of the attending physician as conclusive with respect to a claimant's ability to perform regular employment." Burns v. Robinson Dairy, Inc., 911 P.2d 661, 662 (Colo.App. 1995).
If there is a dispute between attending physicians concerning the claimant's ability to perform regular employment, the issue is one of fact for resolution by the ALJ. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996); Burns v. Robinson Dairy, Inc., supra. We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 1998. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, Dr. Channel's July 16 report reflects his opinion that the claimant is not physically able to perform employment which requires him to drive for long periods of time. Further, Dr. Channel opined that this restriction has existed since January 1997. Dr. Channel's opinion is predicated on the claimant's history of recurrent pain and bleeding during those periods of time he was driving a truck for the respondent-employer and other employers. Thus, Dr. Channel's report constitutes substantial evidence that the claimant has not been able to perform regular or modified employment as a truck driver since January 1997. The fact that other treating physicians released the claimant to work merely presented a conflict in the evidence which the ALJ resolved adversely to the respondents.
Moreover, the claimant's repeated efforts to work in excess of his restriction do not disqualify him from eligibility for temporary total disability benefits during those periods he was off of work. Rather, as the ALJ found, the claimant's attempts to work produced additional symptoms, and hence, additional disability. Thus, the record fully supports the ALJ's determination that the claimant's wage loss during the disputed periods of time was the result of his inability to perform regular or modified employment as a truck driver. See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) (an injury causes disability if the claimant is unable to return to work and perform his usual duties).
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated November 10, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain _______________________________ Bill Whitacre
NOTICE
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. 1998.
Copies of this decision were mailed April 21, 1999 to the following parties:
Jorge Saenz-Rico, 110 Breckenridge Trail, Broomfield, CO 80020
Glen Davis, Yellow Freight System, Inc., 15905 Smith Road, Aurora, CO 80011
Jeanne Hogue, Yellow Freight System, Inc., P.O. Box 7932, Overland Park, Kansas 66211
Douglas R. Phillips, Esq., 155 South Madison, Ste. 330, Denver, CO 80209 (For Claimant)
Michael Perales, Esq., Ritsema Lyon, P.C., 999 18th Street, Ste. 3100, Denver, CO 80202 (For Respondent)
By: AP