BESTWAY CONCRETE v. PANEL

• Decision Date: 08 July 1999
• Docket Number: No. 98CA1243.,98CA1243.
• Citation: 984 P.2d 680
• Parties: BESTWAY CONCRETE and TIG Insurance Company, Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Johnnie S. Ramirez, Respondents.
• Court: Colorado Court of Appeals

984 P.2d 680

BESTWAY CONCRETE and TIG Insurance Company, Petitioners, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Johnnie S. Ramirez, Respondents.

No. 98CA1243.

Colorado Court of Appeals, Div. II.

July 8, 1999.

Clifton, Hook & Bovarnick, P.C., Richard A. Bovarnick, Harvey D. Flewelling, Denver, Colorado, for Petitioners.

No Appearance for Respondent The Industrial Claims Appeals Office.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; Law Offices of Esteban A. Salazar P.C., Esteban A. Salazar, Greeley, Colorado, for Respondent Johnnie S. Ramirez.

Opinion by Judge CRISWELL.

In this workers' compensation proceeding, Bestway Concrete and its insurer, TIG Insurance Company, (collectively employer) seek review of the final order of the Industrial Claim Appeals Office (Panel) awarding temporary total disability (TTD) and medical benefits to Johnnie S. Ramirez (claimant). We affirm.

Claimant, a cement truck driver, sustained a compensable injury to his back on April 12, 1996. Employer referred claimant for medical treatment to a doctor of osteopathy (D.O.). The D.O. released claimant to return to work with no restrictions, effective May 6, 1996. Claimant returned to work as directed. However, at the end of the day, employer terminated claimant for driving his truck in an unsafe manner and for "popping the clutch."

After his termination, claimant received medical treatment from other providers, including an orthopedic surgeon, and he did not return to the D.O. until August 5, 1997. At that time, the D.O. stated that he thought claimant had reached maximum medical improvement (MMI), but he could not determine the date that such occurred because of the time that had elapsed since he had last examined claimant and because he had no medical records from that intervening period.

Claimant thereafter requested a hearing seeking ongoing TTD benefits, beginning April 15, 1996, and medical benefits for his later treatment. After an evidentiary hearing, the Administrative Law Judge (ALJ) determined that the surgeon was an authorized treating physician and ordered payment of those fees.

The ALJ also found that claimant had not reached MMI, that he required additional medical testing as recommended by his treating physicians, and that, pursuant to medical evidence in conflict with the D.O.'s opinion, claimant did not have the ability to work when the May 6, 1996, release was given. Finally, the ALJ held that employer had failed to prove that claimant had willfully violated a safety rule.

Based upon his findings, the ALJ entered an award for medical benefits and for TTD benefits beginning April 15, 1996, and ongoing until terminated pursuant to rule or statute.

On review of that order, the Panel rejected employer's assertion that the D.O.'s release to work automatically terminated claimant's right to TTD benefits. It concluded that, because claimant had received treatment from multiple authorized treating physicians who held conflicting opinions concerning his ability to perform his regular employment, the ALJ had properly resolved the conflicting medical opinions in favor of claimant.

Critical to the Panel's order was its determination upholding the ALJ's finding that the surgeon was an authorized treating physician. The Panel concluded that this physician's medical reports could be construed as a retroactive opinion that claimant was not medically capable of returning to work on the date of the release. The Panel further held that the ALJ could reasonably infer that a chiropractor already treating claimant at the time of his injury was also an authorized treating physician at the time of the D.O.'s release to work. The Panel noted that no dispute existed that the chiropractor had not released claimant to work at that time.

Similarly, the Panel rejected employer's contention that claimant's return to work also precluded his recovery of TTD benefits. The Panel concluded that the ALJ had implicitly found that claimant was not at fault for his discharge and noted that the record contained substantial evidence supporting a causal connection between claimant's injury and his unemployment after his discharge. However, the Panel did set aside that portion of the ALJ's award that awarded benefits for the day that claimant worked.

Finally, the Panel determined that the ALJ's findings were insufficient to resolve the question whether claimant had reached MMI on August 5, 1997. Hence, it remanded the cause to the ALJ only for the ALJ's determination of that issue, and it noted that the findings upon this issue would determine claimant's right to TTD benefits after August 5, 1997. Accordingly, the Panel modified the award of TTD benefits to cover only the period from April 15, 1996, to August 5, 1997, with a reduction for one day's benefits.

I.

Because of the Panel's order of remand in this cause, the parties were requested by us to submit supplemental briefs on the question whether that order meant that its order with respect to the award of TTD benefits was not appealable. Both parties assert, and we agree, that the contested order is one that is final for purposes of appeal to this court and that the Panel's order of remand did not affect its finality for this purpose. Section 8-43-301, C.R.S.1998, provides that any "order which requires any party to pay ... benefits" may be reviewed by the Panel upon the petition of a dissatisfied party. Section 8-43-307, C.R.S.1998, then provides that a "final order" of the Panel may be reviewed by this court upon a petition filed by any party in interest.

Previous statutes allowed a review by this court only of orders that allowed or denied a "claim." See Colo. Sess. Laws 1923, ch. 203 at 755. Now, however, the procedures authorized by the present statute, which are complete and definitive within themselves, see Zappas v. Industrial Commission, 36 Colo.App. 319, 543 P.2d 101 (1975),

make a Panel's order that requires a party to "pay benefits" a "final order" for purposes of judicial review; it is not necessary that all aspects of a "claim" be ruled upon.

Of course, such an order must be one that finally disposes of the issue presented. Hence, an order remanding the cause to the ALJ for further findings is not "final." Natkin & Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). However, so long as the order requires the payment of a benefit, the fact that it does not dispose of all issues raised does not mean that the order is not final. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App.1985)

(order directing medical expenses to be paid final, although issues remained with respect to TTD and permanent disability).

Here, the Panel's order finally and conclusively directed that employer pay TTD benefits to claimant for the period from April 15, 1996, to August 5, 1997 (excluding one day). Its order of remand had no effect upon claimant's entitlement to these benefits. The remand was only to require the ALJ to determine whether claimant would be entitled to continuing benefits after the latter date, and no decision pursuant to the remand order could deprive claimant of the benefits for the period already approved by the Panel.

Under these circumstances, we conclude that the order we are asked to review is one that directed employer to pay benefits, and that order is, therefore, a final order for purposes of that review.

II.

Employer initially contends that the record does not support the ALJ's finding that the orthopedic surgeon was an authorized treating physician. We disagree.

Employers are liable for the expenses incurred when, as part of the normal progression of authorized treatment for a compensable injury suffered by a claimant, an authorized treating physician refers a claimant to one or more other physicians. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App.1985). Thus, the designation "authorized treating physician" includes not only those physicians to whom an employer directly refers a claimant, but also those to whom a claimant is referred by an authorized treating physician. See Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App.1993)

.

Employer argues that the Panel here erroneously relied upon claimant's hearsay testimony to uphold the finding by the ALJ that the D.O. made a referral to the surgeon. We are not persuaded. Hearsay, if reliable, may support the finding of an administrative agency. Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13 (Colo.1989).

Further, the record also contains a supplemental physician's report signed and dated by the D.O. on August 5, 1997, in which he specifically made a referral to the surgeon.

Hence, the record evidence supports the Panel's finding in this respect, and we are, therefore, bound to uphold that determination. See Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App.1997)

.

III.

Employer next contends that the ALJ erred by failing to find that the D.O.'s written work release terminated claimant's right to TTD benefits. We disagree.

Section 8-42-105(3), C.R.S.1998, provides that a claimant's entitlement to TTD benefits will terminate upon the occurrence of any one of the four events set forth in the statute, i.e.: (a) the employee reaches MMI; (b) the employee actually returns to regular or modified employment; (c) "[t]he attending physician gives the employee a written release to return" to regular employment; or (d) the employee is released to return to modified employment and the employer makes a written offer for such, but the employee fails to begin such employment.

The phrase "attending physician", as used in § 8-42-105(3)(c), C.R.S.1998, means a physician within the chain of authorization who assumes care of the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App.1997).

The statute provides that the opinion of the attending physician carries conclusive effect with...