Opinion
W.C. No. 4-733-532.
March 16, 2010.
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Felter (ALJ) dated December 8, 2009 that denied claims for child-care services, denied certain claims for temporary disability and determined the claimant's average weekly wage. We affirm.
The claimant suffered an industrial injury on October 27, 2006 when she slipped and fell on ice in the employer's parking lot. At the time of her injury, the claimant worked as a teacher and as a dental hygienist. The claimant's attending physicians issued unqualified full duty return to work releases on a number of occasions. The claimant underwent back surgery on August 17, 2009 and the respondents began paying the claimant temporary total disability (TTD) benefits following that operation.
On the issue of the claimant's entitlement to reimbursement for certain childcare services the ALJ found that the claimant presented no persuasive medical testimony that the childcare services were essential to the course of the claimant's recovery. In denying the claimant's requests for temporary disability benefits beyond those admitted to, the ALJ relied upon the releases given to the claimant by attending physicians to return to work.
I.
The claimant contends that the respondents failed to plead with specificity § 8-42-105(3) C.R.S 2009 as a basis for terminating temporary total disability benefits. The ALJ cited the provisions of § 8-42-105(3) and credited the releases provided by attending physicians in denying the claimant's requests for periods of temporary benefits.
Section 8-42-105(3)(c) specifically mandates the termination of TTD benefits when an attending physician releases a claimant to return to work. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). Because § 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 the courts have determined that an ALJ may not disregard the attending physician's opinion that a claimant is released to return to regular employment. Imperial Headware, 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).
The claimant citing Kersting v. Industrial Commission 567 P.2d 394 (Colo. App. 1977) and Work v. Adams County, W. C. No. 4-191-303 (December 03, 2004) argues that an affirmative defense must be explicitly pleaded and is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. The claimant argues that the Response to Application for Hearing filed by the respondents did not sufficiently plead this defense.
We reject the claimant's argument that the respondents did not sufficiently plead or raise 8-42-105(3)(c). We agree with the claimant that she is entitled to reasonable notice of both the legal and factual issues to be adjudicated so that she could present evidence and argument in support of her position and properly dispute the respondents' evidence and argument. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo. App. 1990). However, here the Response to the Application for Hearing stated: "The claimant has been released to regular employment." In our view, this gave the claimant reasonable notice of the legal and factual issues to be adjudicated.
Additionally, at the commencement of the hearing the respondents made it clear that it was their position that during the period of claimant entitlement to temporary disability benefits the claimant had been provided a full return to work release, which would preclude temporary benefits. Tr. at 7. The claimant neither expressed surprise nor raised any objection to this contention. Tr. at 7. The claimant did not object to the respondents' exhibits, which included several releases to return to work filled out by attending physicians. Tr. 5-6. We note that in the claimant's post-hearing position statement she specifically discussed § 8-42-105(3)(c) in relationship to the evidence and cited relevant case law. The claimant did not contend surprise nor did she argue that the respondents had waived the defense found in § 8-42-105(3)(c). Under these circumstances, we perceive no violation of due process or standards of pleading which were not either expressly or impliedly waived by the claimant's conduct. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987).
II.
The claimant next argues that after January 15, 2008 there was no categorical "return to full duty" medical statement. The claimant argues that in early 2008 her ability to work was diminishing. The claimant does not assert that there is any opinion from a treating physician assigning any work restrictions to the claimant prior to her back surgery in August 2009. The respondents began paying the claimant TTD benefits in August 2009 due to the claimant's surgery. Exhibit 11. As we understand the claimant's argument she contends that these medical releases were not "full" written releases to return to regular employment under § 8-42-105(3)(c) because she was only returned to work at her job for the employer and not to her work as a nursing home dental hygienist.
If there are conflicting or ambiguous opinions concerning the claimant's ability to perform regular employment, the ALJ may resolve the conflict or ambiguity as a question of fact. Thorne v. United Parcel Service, W. C. No. 4-404-917 (September 25, 2000) see also Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, P.3d (Colo. App. No. 99CA1380, June 8, 2000) (where DIME's opinion concerning the date of MMI was subject to conflicting inferences, ALJ could resolve the issue as one of fact). Here the ALJ found, with record support, that the claimant received unqualified return to work releases from her authorized treating physicians on November 26, 2006 (Exhibit A at 2); December 5, 2006 (Exhibit A at 4); May 17, 2007 (Exhibit 29 at 79) and January 15, 2008 (Exhibit. A at 5). In our view, these medical records constitute substantial evidence in support of the ALJ's determination. Therefore, we must uphold the ALJ's determination. Section 8-43-301(8), C.R.S. 2009.
III.
The claimant contends the ALJ erred in overlooking the differences between the claimant's teaching job, which was light duty in nature, and the rigorous nature of her duties as a nursing home dental hygienist. We note that the ALJ did find that at the time of her injury the claimant had two jobs, one working as a teacher with the employer and a second as a dental assistant with Home Care Dental Services where she cared for patients in various nursing homes. The order does not appear to detail the physical requirements of the two jobs.
However, the claimant does not explain the way in which the claimant was prejudiced by the ALJ's alleged overlooking of the different requirements of the two jobs. Further, the claimant does not state what relief she believes is appropriate if such an error occurred. To the extent that the claimant intends this to be an argument that the releases did not apply to the claimant's work at the nursing home, we remain unpersuaded. As noted above, in our view the ALJ's finding that the claimant received a number of unqualified return to work releases is supported by the record. Therefore, we perceive no grounds to interfere with the ALJ's order.
IV.
The claimant next contends that the ALJ erred in failing to award two periods of temporary total disability (TTD) benefits. The first claimed period is for a three-week period from the termination of her job at KIDS on March 11, 2008 until she began to work for Dr. Mackie on April 1, 2008. The second period of claimed TTD is for one week following her termination of work from Dr. Mackie's office on August 21, 2008. As we understand the claimant's arguments, she contends that she lost her jobs because of the effects of the industrial injury and that the authorized treating physicians had not authored contemporaneous full releases to return to work.
However, the claimant has the burden of proving an entitlement to benefits by a preponderance of the evidence. Qual-Med, Inc. v. Indus. Claim Appeals Office, 961 P.2d 590, 592 (Colo. App. 1998). In our view, once having demonstrated entitlement to terminate TTD benefits pursuant to § 8-42-105(3)(c), it was not the burden of the respondents to again demonstrate entitlement to termination of TTD benefits by additional medical releases. Whether the claimant has proved disability is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997).
As noted above here the ALJ, with record support, found that the claimant had received numerous unqualified return to work releases from her attending physicians one of which was on January 15, 2008 (Exhibit. A at 5). In our view there was substantial evidence in the record to support the ALJ's determination that because of these medical releases and the mandatory effect of § 8-42-105(3)(c) that the claimant had failed to demonstrate entitlement to the additional claimed TTD benefits.
V.
The claimant also contends that the ALJ erred in failing to award temporary total disability benefits based on an average weekly wage of $9.53 an hour. In support of this argument, the claimant outlines in detail the nature of the surgery the claimant underwent and then argues that no doctor ever returned the claimant to her work as a nursing home dental hygienist. As noted above to the extent that there were ambiguous medical opinions concerning the claimant's ability to perform regular employment, this was a matter for factual resolution by the ALJ. We are persuaded that there is substantial support in the record for the ALJ's determination that the claimant received numerous unqualified return to work releases from her authorized treating physicians.
VI.
The claimant contends that she is entitled to a temporary partial disability award because she lost two full time jobs because she had not undergone surgery. The claimant contends she is due $13,295.92, on account of temporary partial disability, for the period from August 28, 2008 to August 17, 2009. As we understand the claimant this is the period of time between the termination of her employment with Dr. Mackie and the time of her surgery.
Again, the ALJ was not persuaded that the claimant had established entitlement to temporary benefits after she was released to full work by three different attending physicians and before her surgery at which point the respondents appear to have voluntarily reinstated TTD benefits. The ALJ specifically found that until she underwent back surgery in August 2009 she had not received work-related restrictions by an attending physician. The ALJ found that the opinions of Dr. Healey, who performed an independent medical examination at the claimant's request, were without legal standing on the issue of a release to return to work. The claimant does not challenge these findings of fact nor the authority of § 8-42-105(3)(c). Therefore, we are not persuaded to disturb the ALJ's determination.
VII.
The claimant argues that the ALJ erred in failing to award reimbursement for childcare expenses, which she incurred in order to secure medical treatment for her industrial injury. The claimant cites Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo. App. 1997) in support of her position.
We note that here the ALJ specifically relied on Bellone v. Industrial Claim Appeals Office, supra. However, the ALJ found that the claimant presented no persuasive medical testimony that the childcare services were essential to the course of the claimant's recovery. The ALJ noted that Dr. Kawasaki had stated that the presence of the claimant's children in the attending room created a "very chaotic" atmosphere, but he was nonetheless able to complete his examination. Exhibit B at 10.
The question of whether a particular service is medically necessary or incident to obtaining medical treatment is to be resolved by the ALJ based on the particular facts of the case. Bellone v. Industrial Claim Appeals Office, supra; Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo. App. 1990). Because these matters are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and the plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). In our view, there is substantial evidence in the record supporting the ALJ's factual determination that the claimant failed to carry her burden of proof to demonstrate entitlement to reimbursement for the requested childcare services. IT IS THEREFORE ORDERED that the ALJ's order issued December 8, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Thomas Schrant
____________________________________ Curt Kriksciun
APRIL SUE SMITH, NORTHGLENN, CO, (Claimant), CONCORDE CAREER COLLEGES, Attn: DIANE HAWKINS-JENKS, MISSION, KS, (Employer), WAUSAU INSURANCE COMPANY, Attn: PATTI BELL, IRVING, TX, (Insurer), JOHN A "JACK" KINTZELE, ESQ., Attn: JOHN A KINTZELE, ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: DAVID G KROLL, ESQ., DENVER, CO, (For Respondents).