Opinion
W.C. No. 4-313-166
June 12, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which denied his claim for temporary total disability benefits from November 15, 1995 through December 30, 1996. We affirm.
The ALJ found that the claimant sustained a compensable back injury on February 26, 1995. The claimant's initial treating physician was Dr. Akmakjian. On March 10, 1995, Dr. Akmakjian issued a report stating that it was no longer necessary to see the claimant "unless he is having a problem and hopefully he can resume his normal employment." He also restricted the claimant from lifting more than sixty pounds, and no repetitive twisting, bending and stooping. Dr. Akmakjian further stated that he believed the claimant "can increase his activities and weight lifting activities as tolerated and this can be managed through Kodak."
On April 4, 1995, the claimant was seen at Kodak's health department and released to his regular duties. The claimant testified that he in fact returned to work performing his regular job in April 1995. (Tr. pp. 5-6).
On November 15, 1995, Kodak terminated the claimant based on performance problems. The claimant testified that these performance problems were the result of ongoing physical problems caused by his injury. (Tr. p. 7). However, the ALJ discredited this testimony. (Conclusions of Law).
On December 31, 1996, the claimant was examined by Dr. Donner. Dr. Donner reported the claimant suffered an industrial injury in February of 1996, and was suffering from "chronic back pain related to work injury ten months ago." Dr. Donner opined the claimant was not able to return to any employment and should undergo a lumbar MRI. The respondents reinstated temporary total disability as of December 31, 1996.
Under these circumstances, the ALJ denied the claimant's request for temporary total disability benefits from November 15, 1996 through December 30, 1996. The ALJ determined that temporary benefits were properly ended prior to November 15, because the claimant was released to regular employment by Dr. Akmakjian and Kodak, and returned to regular employment. Furthermore, the ALJ found Dr. Akmakjian's March 10 report was "tantamount to a determination of maximum medical improvement."
Moreover, the ALJ found no basis for reinstating temporary disability benefits after November 15 and before December 1996. In support, the ALJ noted the record contains no medical opinions restricting the claimant from work or taking the claimant off work prior to Dr. Donner's December 31, 1996 report. The ALJ discredited the claimant's testimony concerning his inability to work during this period.
I.
On review, the claimant first contends the ALJ erred in holding that his benefits were properly terminated under § 8-42-105(3), C.R.S. 1997. The claimant asserts that it is "ludicrous" to treat the Dr. Akmakjian's March 10 medical report as a finding of maximum medical improvement (MMI) because the respondents did not file a final admission, and because no "medical report has been presented" indicating claimant reached MMI. The claimant further contends he did not return to regular employment because the duties of his job exceeded the limitations imposed by Dr. Akmakjian. We are not persuaded.
Section 8-42-105(3)(a), C.R.S. 1997, permits termination of temporary disability benefits when the claimant reaches MMI. A finding of MMI by the authorized treating physician is binding unless overcome under the independent medical examination procedure established by § 8-42-107(8)(b), C.R.S. 1997. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). However, the ALJ retains fact finding authority to resolve conflicts concerning MMI if the treating physician issues conflicting or ambiguous opinions concerning whether or not the claimant has reached MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Insofar as the record contains conflicting evidence concerning whether or not the claimant was placed at MMI by the treating physician, we must defer to the ALJ's resolution of this issue if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1997. Consequently, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The definition of MMI is found in § 8-40-201(11.5), C.R.S. 1997. The statute defines MMI as the point in time when "any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition." Further, the mere possibility of improvement or deterioration "resulting from the passage of time shall not affect a finding of" MMI.
Here, although Dr. Akmakjian's March 10 report did not specifically refer to MMI, he did impose restrictions, and released the claimant to work subject to a full release by Kodak. More importantly, Dr. Akmakjian stated that he did not need to see the claimant "for follow-up" unless the claimant developed further "problems."
Under these circumstances, the ALJ could logically infer that Dr. Akmakjian had concluded the claimant was stable and no further treatment was planned or anticipated. Moreover, the mere fact that the claimant could gain additional mobility with the passage of time did not rule out a finding of MMI. Consequently, substantial evidence supports the ALJ's inference that the March 10 report constituted a finding of MMI, and that it afforded a proper basis for the termination of temporary disability benefits under § 8-42-105(3)(a).
It is true the respondents did not file a final admission of liability following the March 10 report. While this may or may not constitute some form of procedural error, it does not alter the validity of the ALJ's inferences drawn from the report itself. The fact the evidence might have supported contrary findings and conclusions affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
In any case, we agree with the ALJ that the claimant's return to regular employment justifies termination of temporary disability benefits under § 8-42-105(3)(b), C.R.S. 1997.
In this regard, we do not dispute the claimant's legal assertion that his "regular employment" must be within the restrictions imposed by the treating physician. See Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995). However, the question of whether the duties of the claimant's regular employment fall within such restrictions is one of fact for determination by the ALJ. Cf. Rodriguez v. Noble Electrical Contracting, W.C. No. 4-254-794 (September 27, 1996); Herrera v. Thompson School District, W.C. No. 4-114-576 (May 18, 1994).
Here, substantial evidence supports the ALJ's determination that the claimant returned to his regular duties, and these duties were within the overall restrictions imposed by Dr. Akmakjian. First, the claimant requested to return to regular employment, and Kodak found him fit to do so on April 4, 1995. Secondly, although the claimant testified that his performance problems were related to physical problems stemming from the injury, the employer's records suggest the claimant's difficulties were predominantly caused by lack of attention to detail and poor judgment. Further, although the claimant saw his personal physicians in January 1996 and September 1996, he made no complaints concerning back pain. Under these circumstances, the ALJ could logically infer the claimant was able to perform his regular employment, and had returned to regular employment.
Under these circumstances, we need not consider whether the claimant was given a written release to regular employment within the meaning of § 8-42-105(3)(c), C.R.S. 1997.
II.
The claimant also contends the temporary disability benefits should have been reinstated in November 1995 when he was terminated from employment. Specifically, the claimant asserts the ALJ erred in requiring him to produce "medical documentation" of restrictions in order to reestablish his entitlement to temporary disability benefits. Under the circumstances, we find no error.
It is true a claimant need not produce medical evidence of restrictions in order to establish an initial entitlement to temporary disability benefits. To the contrary, the claimant's testimony that he is disabled from performing regular employment may be sufficient, standing alone, to justify a finding of disability. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Moreover, we have extended the logic of Lymburn to include cases where the claimant is seeking to reestablish the right to temporary total disability benefits based on an alleged worsening of condition. See Tuttrow v. Gosney Sons, Inc., W.C. No. 3-102-245 (October 24, 1997) aff'd. on other grounds, Gosney Sons, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1948, May 28, 1997) (not selected for publication).
However, we do not understand the ALJ to have violated the principles announced in Lymburn. Although Lymburn holds that a claimant is not required to produce medical restrictions in order to establish temporary disability, the opinion does not restrict the ALJ from considering the absence of such restrictions in determining whether the claimant has carried his burden of proof. Moreover, the ALJ explicitly considered and rejected the claimant's testimony that he was restricted from performing the duties of his regular employment as of November 15, 1995. Therefore, the ALJ did not rely solely on the absence of medical evidence of restrictions in rejecting the claim for temporary total disability benefits.
The record also supports the ALJ's conclusion that the claimant failed to carry his burden of proof to establish temporary disability benefits. The claimant returned to regular duty in April 1995, and was terminated for reasons which the ALJ found were not associated with the injury. Thereafter, the claimant did not obtain additional medical treatment for his back until December 1996, more than one year later. In the interim period, the claimant did seek medical treatment for other conditions, but did not report back problems. Finally, Dr. Donner's report reflects a misunderstanding of the date the claimant sustained his injury, and raises a question concerning when the claimant actually began to experience disabling symptoms.
IT IS THEREFORE ORDERED that the ALJ's order dated October 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Dona HalseyNOTICE 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. 1997.
Copies of this decision were mailed June 12, 1998 to the following parties:
Helmut Ziel, 1015 Cottonwood Dr., Windsor, CO 80550
Eastman Kodak Co., Attn: Susan Havekost, 9952 Eastman Park Dr., Windsor, CO 80551-3301
Jan McConnaughey, Esq., Eastman Kodak Co., 343 State St., Rochester, NY 14650-0322
Richard K. Blundell, Esq., 800 8th Ave., Ste. 202, Greeley, CO 80631 (For the Claimant)
David J. Dworkin, Esq. Melissa J. Loman, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondent)
By: __________________________________________________