Opinion
W.C. No. 4-643-942.
April 4, 2007.
ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) dated November 13, 2006, that awarded temporary disability benefits and allowed the claimant to request a Division-sponsored independent medical examination (DIME). We dismiss the respondents' petition to review insofar as it seeks review of the order permitting the claimant to seek a DIME and otherwise we affirm the order.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted industrial injury on February 1, 2005, when he twisted his right ankle and fell to the ground. The claimant was referred to Centura Centers for Occupational Medicine (Centura) to whom he reported right ankle pain and pre-existing low back and neck pain from a motor vehicle accident. On February 9, 2005, the claimant returned to Centura and reported right-sided low back pain due to an altered gait resulting from the right ankle sprain. The claimant was placed on work restrictions and underwent surgery for the right ankle and treatment for the low back pain. On December 2, 2005, Dr. Ferstenberg issued a release to full-duty work, which the ALJ found to be "qualified and ambiguous." The ALJ found that the release stated that the claimant could not perform the heaviest parts of his regular job, but otherwise the claimant could work full-duty. Because of the "qualified" nature of the release, the ALJ construed it as not releasing the claimant to full-duty work on December 2, 2005. On March 16, 2006, Dr. Ferstenberg reported that the claimant had recovered from the ankle surgery and was at maximum medical improvement (MMI). She performed an impairment rating for the right ankle, noting in the report that "the back and knee are not part of this claim." In a separate report, also dated March 16, 2006, Dr. Ferstenberg reported a sprained lumbar spine with a date of injury of February 9, 2005, which is a different date of injury than the right ankle sprain. The ALJ found that the two reports dated March 16, 2006 from Dr. Ferstenberg were contradictory. The respondents filed a final admission of liability (FAL) on May 1, 2006, admitting for permanent disability benefits. The claimant filed an application for hearing but did not request a DIME. The claimant stated the disputed issue as whether Dr. Ferstenberg had actually placed the claimant at MMI regarding the back condition so that the claimant could make an intelligent assessment of whether he needed to request a DIME. Dr. Ferstenberg authored a note dated September 5, 2006, stating that she had intended to place the claimant at full-duty on December 2, 2005. The ALJ found that Dr. Ferstenberg did place the claimant at MMI for the entire industrial injury on March 16, 2006, but did not release the claimant to full-duty work on December 2, 2005. The ALJ therefore denied the respondents' request for credit for an overpayment of TTD benefits beginning on December 2, 2005. The ALJ also concluded that the claimant raised a colorable issue regarding whether Dr. Ferstenberg intended to place the claimant at MMI and therefore she concluded that the claimant was entitled to request a DIME.
On appeal the respondents first contend that the award of temporary disability benefits is contrary to the law because the claimant's authorized treating physician released the claimant to regular employment. We disagree that the ALJ erred in her interpretation of the physician's release to work.
Section 8-42-105(3)(c), C.R.S. 2006 provides that temporary total disability benefits cease when the attending physician gives the employee a release to regular employment. Thus, the attending physician's opinion concerning the claimant's ability to return to regular employment is binding on the parties. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). In Burns the court of appeals held that the opinion of the attending physician binds an ALJ with respect to the claimant's ability to perform regular employment, and evidence concerning the claimant's self-evaluation of his ability to perform the job is irrelevant. However, the court also stated that the ALJ retains fact-finding authority where multiple attending physicians offer conflicting opinions concerning the claimant's ability to return to regular employment. Burns, 911 P.2d at 662.
The court of appeals has subsequently confirmed that, although the ALJ may not disregard the attending physician's report releasing a claimant to regular employment, if there is a conflict in the record regarding the claimant's release to work, "the ALJ must resolve the conflict." Imperial Headware, Inc. v. Industrial Claim Appeals Office, 15 P.3d 295, 296 (Colo.App., 2000). In Imperial Headware the attending physician's report stated, on the one hand, that the claimant was able to return to work, but, on the other hand, it stated that the release to work was based in part on "medical noncompliance." The ALJ interpreted this report as internally conflicting regarding whether the claimant had actually been released to work. The court of appeals affirmed, reasoning that the remedy for "medical noncompliance" was suspension of temporary total disability benefits while termination of those benefits was required if the claimant is able to return to regular employment. The court held that the internal conflict created by the reference to "medical noncompliance" was sufficient to permit the ALJ "to examine the issue and resolve the conflict." Imperial Headware, Inc., 15 P.3d at 297. Because the ALJ's resolution of the issue was supported by the record the court declined to disturb the order.
Following Imperial Headware, Inc., we have ruled in a number of instances that the attending physician's opinion of the claimant's physical ability to perform his regular work is dispositive unless the opinion is subject to conflicting inferences, in which case whether the claimant has been medically released to his regular employment is one of fact for resolution by the ALJ. Childers v. Pueblo Truss Company W.C. No. 4-599-177 (September 20, 2006); Yale v. Engineered Plastic Designs W.C. No. 4-643-303 (April 3, 2006); Becker v. Starmark Holdings W.C. No. 4-466-842 (June 7, 2002); Hart v. Houg Enterprises W.C. No. 4-418-644 (March 1, 2001). See also Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002) (an ALJ may resolve ambiguities in an authorized treating physician's alleged finding of MMI without requiring a DIME to be conducted); Briley v. K-Mart Corp., W.C. No. 4-494-519 (March 12, 2003); Pacheco v. Patti's Incorporated W.C. No. 4-421-759 (May 3, 2004).
The determination of whether a claimant has been released to return to work by the attending physician is a question of fact. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Thus, the ALJ has the discretion to resolve conflicts in the physician's report. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (when treating physician issues conflicting opinions concerning maximum medical improvement, it is for the ALJ to resolve such conflict). An ALJ's factual determinations are binding on review if there is substantial evidence in the record to support them. Section 8-43-301(8), C.R.S. 2006; Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ found that there were discrepancies in Dr. Ferstenberg's opinion as to whether the claimant could return to regular employment. Resolving the inconsistencies, she further found that Dr. Ferstenberg did not release the claimant to full-duty work on December 2, 2005. The record supports that finding. On December 2, 2005, Dr. Ferstenberg completed a physician's report and checked a box indicating the claimant could return to full-duty work, but she also wrote under "other" that the claimant "may need assistance with heavier items." Exhibit E at 22. Dr. Ferstenberg's chart note for the same date states that "the plan is to put him back to work without restrictions" and that she had made a note to his employer that he may need assistance with heavier items. Exhibit E at 21. Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding that Dr. Ferstenberg did not release the claimant to full-duty work on December 2, 2005.
In support of their argument, the respondents point out that Dr. Ferstenberg stated in correspondence dated September 5, 2006, that it was her intent to release the claimant to full duty, and that she merely expected the claimant to request assistance with heavier items as she thought any prudent worker would do. However, the resolution of conflicts in the evidence is solely within the province of the ALJ, and the existence in the record of conflicting evidence that would support a contrary result does not provide a basis for setting aside her order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). Although the doctor's subsequent report is certainly evidence that the ALJ could consider in construing the previous release, it did not compel the ALJ to reach any particular conclusion. In our opinion there is substantial evidence in the record to support the award of temporary disability benefits and, therefore, we may not disturb the order.
The respondents next contend that the ALJ erred in allowing the claimant to request a DIME, arguing that § 8-42-107.2(2)(b), C.R.S. 2006 requires the claimant to request the DIME within thirty days of the FAL.
We conclude that this portion of the ALJ's order is not final and reviewable. Under § 8-43-301(2), C.R.S. 2006, a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Nankin Co. v. Embanks, 775 P.2d 88 (Colo.App. 1989). We have issued numerous decisions holding that orders related to DIME requests are in the nature of evidentiary rulings and are therefore interlocutory. See, e.g., Sander v. Summit Group, Inc., W.C. No. 4-369-777 (September 27, 2000); Lozano v. Front Range Rebar Co., Inc., W.C. No. 4-285-320 (August 3, 1998). The portion of the ALJ's order allowing the claimant to request a DIME does not effectively award or deny the claimant any benefits. Cf. Meza v. Conagra Beef Company, W.C. No. 4-444-220 (December 11, 2000). Accordingly, the ALJ's order, insofar as it allows the claimant to proceed with his request for a DIME, is interlocutory and not currently reviewable. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843, 846 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory). Thus, we may not consider the issue at this time. IT IS THEREFORE ORDERED that the petition to review is dismissed without prejudice insofar as it concerns the issue of claimant's request for a DIME.
IT IS FURTHER ORDERED that the ALJ's order dated November 13, 2006, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ Curt Kriksciun
_________________________ Thomas Schrant
Lawrence Saunders Esq., Koncilja Koncilja, PC, Pueblo, CO, (For Claimant).
Regan H. Rozier Esq., McCrea Buck, L.L.C., Denver, CO,(For Respondent).
Rent A Center, Matt Koen, Pueblo, CO, Insurance Company State of Pennsylvania, Specialty Risk Services, Lucy Arguello, Denver, CO.