In re Terry, W.C. No

This case is not covered by Casetext's citator
Industrial Claim Appeals OfficeDec 9, 1997
W.C. No. 4-226-464 (Colo. Ind. App. Dec. 9, 1997)

W.C. No. 4-226-464

December 9, 1997


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his request for temporary disability benefits. We affirm.

The claimant sustained an admitted burn injury to his left arm on October 1, 1994. The employer referred the claimant to Emergicare where he was treated by Dr. Vila-Balzac. Thereafter, the claimant returned to restricted duty with the employer. On October 26, 1994, the claimant was arrested for assault and was discharged from his employment. The claimant applied for temporary disability benefits in connection with his subsequent unemployment.

In finding that the claimant is not entitled to temporary disability benefits, the ALJ determined that Dr. Vila-Balzac released the claimant to return to regular employment on October 13, 1994. The ALJ also determined that the claimant was at fault for the termination of his job with the employer, and that his subsequent wage loss was not related to the industrial injury. Further, the ALJ determined that the claimant is at maximum medical improvement (MMI) with no permanent impairment.

On review, the claimant contends that the ALJ erroneously denied the claim for temporary disability benefits. The claimant argues, inter alia, that the ALJ erroneously interpreted the Physician's Supplemental Report dated October 13, 1994, as a release to return to regular employment, under § 8-42-105(3)(c), C.R.S. 1997. In support, the claimant cites evidence that the report was signed by a physician's assistant not Dr. Vila-Balzac. We disagree.

To prove an entitlement to temporary disability benefits the claimant must establish that the industrial injury caused a "disability" lasting more than three work shifts, and that he left work as a result of the disability. Section 8-42-103(1), C.R.S. 1997; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) ; Lymburn v. Symbios Logic, ___ P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997). As indicated by the court in PDM Molding, Inc. v. Stanberg, supra, the term "disability" refers to the claimant's physical inability to perform regular employment.

If the claimant sustains his initial burden to prove an entitlement to temporary disability benefits, the benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1997. Insofar as pertinent, § 8-42-105(3)(c) terminates benefits when the "attending physician" gives the claimant a release to return to regular employment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).

An attending physician is a physician who "takes care of a claimant," and is limited to authorized treating physicians. Popke v. Industrial Claim Appeals Office, supra. However, not all authorized treating physicians are "the attending physician" for purposes of § 8-42-105(3)(c), and the identity of "the attending physician" is a question of fact for the ALJ. Popke v. Industrial Claim Appeals Office, supra.

Here, the ALJ found that it "is undisputed that the claimant's primary care physician was Dr. Vila-Balzac with Emergicare." (Finding of Fact 4). The ALJ also found that Dr. Vila-Balzac released the claimant to regular work. Further, the ALJ expressly recognized that temporary disability benefits terminate when the "attending physician" releases the claimant to regular employment. (Conclusions of Law). Under these circumstances, we understand the ALJ as finding that Dr. Vila-Balzac was "the attending physician" for purposes of § 8-42-105(3)(c).

Furthermore, the question of whether Dr. Vila-Balzac released the claimant to return to regular employment was a factual determination for the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In this regard, we must defer to the ALJ's resolution of conflicts in the evidence, and the plausible inferences she drew from the record. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

The law requires that all physician assistants work under the supervision of a licensed physician. See § 12-36-106(5)(a) (b)(I), C.R.S. 1997; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Consequently, we have previously held that medical restrictions imposed by a physician's assistant may be considered to be medical restrictions imposed by the treating physician. See Bassett v. Echo Canyon Rafting Expeditions, W.C. No. 4-260-804 (April 3, 1997).

Here, the October 13, 1996, report which releases the claimant to return to regular employment was signed by a physician's assistant. However, Dr. Vila-Balzac is listed as the claimant's physician on the Emergicare records, including the October 13 report. In addition, the clinic note written by the physician's assistant who examined the claimant on October 13, 1994, states that the examination results were "discussed with Dr. Vila." Under these circumstances, the ALJ could, and did, reasonably infer that Dr. Vila-Balzac authorized the physician's assistant to sign for him in releasing the claimant to regular employment.

Moreover, insofar as the claimant may have sustained his initial burden to prove an entitlement to temporary disability benefits, the ALJ's finding that the attending physician released the claimant to return to regular employment on October 13, 1994, supports the ALJ's denial of temporary disability benefits after October 26, 1994. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Therefore, we cannot say that the ALJ erred in denying the claim for temporary disability benefits.

The ALJ made alternative findings in support of the denial of temporary disability benefits. However, in view of our conclusion that the ALJ's order is consistent with § 8-42-105(3)(c), we need not consider whether the order is also supported by the alternative findings.

We also note that the sole issues before the ALJ were temporary disability and medical benefits, and the ALJ made no order regarding permanent disability. Consequently, insofar as the ALJ made factual determinations pertinent to permanent disability, we need not and do not consider whether the ALJ erred in making those determinations. Accordingly, we have not considered whether the ALJ erred in finding that the claimant is at MMI with no permanent impairment.

IT IS THEREFORE ORDERED that the ALJ's order dated January 22, 1997, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain

______________________________ Kathy E. Dean
NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed December 9, 1997 to the following parties:

Alton D. Terry, 3021 Mallard Dr., Apt. 102, Colorado Springs, CO 80910

Paul W. Suksi, LMP Enterprises Inc. d/b/a Captain D's Seafood Restaurant, c/o

Curt Kriksciun, Esq., Colorado Compensation Insurance Authority,(Interagency Mail)

Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3026 (For the Claimant)

Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)

BY: __________________________