Opinion
W.C. No. 4-779-599.
March 24, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated November 6. 2009, that in part awarded temporary total disability (TTD) benefits. We affirm.
The claimant suffered an industrial injury to her ankle on November 6, 2007. Dr. O'Brien was the claimant's authorized treating physician (ATP). The ATP saw the claimant on October 8, 2008 and while he did not place her at maximum medical improvement, he did state that the claimant "will return to unrestricted work." As we read the ALJ's order, the ATP provided the claimant a written release to return to regular employment on October 8, 2008. This interpretation appears to be conceded to by the claimant because she requests that the order be left undisturbed and does not seek TTD benefits beyond those ordered.
The claimant saw her own doctor. Dr. Satt, on May 20, 2009 who imposed physical restrictions. The ALJ found that Dr. Satt's medical findings and restrictions established that at the time of her examination the claimant's condition had deteriorated such that she was not able to continue to earn a wage. The ALJ concluded that the respondents were responsible for the claimant's wage loss and ordered payment of TTD benefits from May 20, 2009.
The respondents appeal, contending that the ALJ erred in ordering the respondents to pay TTD benefits despite the fact that the ATP provided the claimant a written release to return to regular employment. The respondents argue that § 8-42-105(3)(c) specifically mandates the termination of TTD benefits when an attending physician releases a claimant, to return to work. The respondents contend that § 8-42-105(3) C.R.S. 2009 precludes the further award of payment of temporary benefits in the present case.
It is true that § 8-42-105(3)(c) mandates termination of TTD benefits if the attending physician gives the employee a written release to return to regular employment, and the courts have determined that an ALJ may not disregard the opinion of the physician on this issue. Imperial Heaclware, Inc. v. Industrial Claim Appeals Office 15 P.3d 295 (Colo. App. 2000); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo. App. 1995); see also DeJoy v. The Shaw Group, W.C. No. 4-741-382 (May 14, 2009)
However, in this case the claimant was not contesting the termination of any TTD benefits. The respondents had only filed a general admission for medical benefits and the claimant had not been granted any TTD benefits by admission or by order. Rather, the claimant sought TTD benefits based on a worsening of her condition that first occurred after she was released to return to work. Therefore, in our view the issue on review is whether the ALJ's order may be disturbed based upon the law applicable to the initial establishment of the claimant's right to TTD benefits. See Rivera v. Ames Construction, W.C. No. 4-421-438 (August 25, 2000). aff'd. St. Paul Marine Insurance and Ames Construction v. Industrial Claim Appeals Office No. 00CA1664 (Colo. App. January 18, 200I(not selected for publication).
To prove entitlement to TTD the claimant must prove the industrial injury caused a "disability." § 8-42-103(1), C.R.S. 2009; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first is "medical incapacity" evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of "disability" may be evidenced by showing a complete inability to work, or by physical restrictions, which impair the claimant's ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App.-1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We must uphold the ALJ's determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2009. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The ALJ in determining whether the claimant had established entitlement to TTD was not precluded from relying on the claimant's testimony and the report of the claimant's own physician, even though that physician was not an authorized treating physician. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997)(claimant's testimony and opinion of her personal physician were sufficient to support TTD award; opinion of treating physician was not required). In our view, proving that a condition worsened, thereby rendering the claimant unable to work; did not constitute an attack on the attending physician's opinion that the claimant was previously able to perform regular employment.
Here the ALJ found, with record support, that at the time of the claimant's examination with Dr. Satt her "condition had deteriorated such that she was not able to continue to earn a wage." In our view, there is substantial evidence in the record to support the ALJ's determination. Therefore, we are unpersuaded to set aside or reverse the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued November 6, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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ANNETTE M VIGIL, ROCKY FORD, CO, (Claimant).
PIONEER HEALTHCARE, ROCKY FORD, CO, (Employer).
WAUSAU BUSINESS INSURANCE COMPANY, Attn: KIMBERLY TRAVIS, IRVING, TX, (Insurer).
MCDIVITT LAW FIRM, P.C., Attn: KIRK WHITEHEAD, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID KROLL, ESQ., DENVER, CO, (For Respondents).