Opinion
W.C. No. 4-397-863
December 15, 1999
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) insofar as it determined the claimant sustained a compensable injury and awarded temporary disability benefits. We remand the matter for entry of a new order.
The ALJ found the claimant "first began experiencing low back" pain on September 3, 1998, due to "necessary bending, lifting and twisting in her job" as a cashier. The ALJ also found that on September 5, 1998, the claimant "experienced an acute attack of low back pain while rising from a chair at the conclusion of her break taken in the employee lunch room." Consequently, the ALJ concluded that the claimant "has a compensable injury even though an acute episode of back pain occurred while the claimant was on break in the employee lunch room rather than while the claimant was on duty." The ALJ awarded temporary total disability benefits from September 6, 1998, to November 19, 1998, when the claimant returned to work with a different employer.
I.
On review, the respondents first contend the ALJ erred as a matter of fact and law in determining that the claimant sustained a compensable injury when she arose from the chair in the employee lunch room. The respondents assert that this injury did not arise out of and in the course of employment. Because we cannot determine whether the ALJ has found the claimant sustained an occupational disease, an accidental injury, or both, we remand for entry of a new order.
The ALJ's Findings of Fact 2 3 suggest the ALJ found the claimant sustained an occupational disease affecting her low back. Finding of Fact 4 suggests that the claimant sustained a separate intervening injury on September 5 or, alternatively, that the claimant's subsisting occupational disease became more symptomatic on that date. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970) (respondents liable for natural and proximate results of industrial injury); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (question of whether claimant suffered a physical injury or aggravated a pre-existing condition is a question of evidentiary fact).
In view of these findings we are unable to determine whether it is necessary to address the respondents' arguments concerning the hypothetical compensability of the "injury" allegedly sustained when the claimant arose from the chair. If the ALJ meant to find the claimant sustained an occupational disease, and that the symptoms which the claimant experienced on September 5 were a natural and proximate result of that disease, the "compensability" of the break room incident would be immaterial. Instead, the claimant's entitlement to benefits would turn on the sufficiency of the evidence to support the finding of an occupational disease, and the finding that the occupational disease was the natural and proximate cause of the claimant's symptoms. Conversely, if the ALJ meant to find the claimant's condition is the result of an intervening event on September 5, it would be necessary to address the respondents' arguments concerning the break room incident.
The ALJ's Conclusions of Law do not aid us in determining the ALJ's intent. On the one hand, the ALJ found the claimant sustained a "compensable injury even though an acute episode of back pain occurred while the claimant was on break." On the other hand, the ALJ denied a penalty for late reporting because the claimant "provided written documentation of her injury to her supervisor on September 6, 1998, the day after her injury."
Under these circumstances, it is necessary to remand the matter to the ALJ to determine the precise nature and date or dates of the claimant's alleged injuries. The ALJ should enter specific findings of fact determining whether the claimant sustained an occupational disease, an accidental injury, or both. The ALJ should also enter specific findings concerning the date or dates of these events, as well as the nature of the disability and need for treatment caused by the injury or injuries. Section 8-43-301(8), C.R.S. 1999 (we may set aside ALJ's order where the findings of fact are not sufficient to support appellate review and the order does not resolve pertinent conflicts in the evidence). It is not necessary to address the respondents' particular arguments until such time as the ALJ enters the requisite findings of fact and conclusions of law.
II.
Should the ALJ determine the claimant sustained a compensable injury or occupational disease, the ALJ should enter specific findings of fact and conclusions of law determining whether any temporary disability benefits should terminate on September 28, 1998. In this regard, we note that § 8-42-105(3)(c), C.R.S. 1999, provides that temporary disability benefits cease when the "attending physician gives the employee a written release to return to regular employment."
In order to establish grounds for the termination of temporary total disability benefits under § 8-42-105(3)(c), the evidence must establish that the attending physician's written release to regular employment was physically delivered to the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). If the attending physician released the claimant to regular employment, the claimant's own opinion concerning her ability to work is irrelevant. Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995). However, to the extent the attending physician issues conflicting or ambiguous opinions concerning the claimant's ability to perform regular employment, determination of the attending physician's actual opinion is one of fact for determination by the ALJ. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (involving conflicting opinions issued by multiple attending physicians); Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (when termination of temporary benefits is based on the attainment of MMI the ALJ may resolve conflicts or ambiguities in the opinions of treating physicians).
Here, the record permits the inference the claimant was released to regular employment on September 28, 1998. On September 21, Physician Assistant Titus established restrictions for one week, "then no restrictions." This note was reviewed by Dr. Morris on September 22, 1998. However, the record is subject to conflicting inferences concerning whether or not this office note was physically delivered to the claimant. There is no direct evidence that the claimant ever received a copy of the note. However, the claimant testified that she was aware of these restrictions and the release. (Tr. p. 48).
Further, the record is subject to conflicting inferences concerning whether or not Titus and Morris actually released the claimant effective September 28. That portion of the September 21 office note purporting to release the claimant with "no restrictions" is contained in the "Plan" section of the document. Thus, the note is subject to conflicting inferences concerning whether an actual release occurred, or merely that there was an expectation of releasing the claimant. Moreover, on September 24, 1998, Titus signed a "Request for Leave of Absence" indicating that it was "unknown" when the claimant would return to work. Later, the claimant was diagnosed with a herniated disc. This diagnosis was substantially more serious than the "unspecified back pain" which Titus diagnosed on September 21.
If temporary disability benefits are awarded, the ALJ should resolve the pertinent conflicts in the evidence concerning whether or not temporary disability benefits should end effective September 28.
IT IS THEREFORE ORDERED that the ALJ's order dated February 25, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 15, 1999 to the following parties:
Elizabeth Weatherington, 4768 S. Union Ct., Morrison, CO 80465
Wal-Mart Stores, Inc. d/b/a Sam's Wholesale Club, Attn: Human Resources, 4827 S. Wadsworth Way, Littleton, CO 80123
Insurance Company of the State of Pennsylvania, Jon Causseaux, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
John C. Bowes, Esq., 720 Kipling St., #201, Lakewood, CO 80215 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy