OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(f)” ON MARCH 3, 2016, IS NOW DESIGNATED FOR PUBLICATION
Prior Opinion Announced March 3, 2016, WITHDRAWN.
Industrial Claim Appeals Office of the State of Colorado WC No. 4-951-597.
McDivitt Law Firm, Nicole Smith, Colorado Springs, Colorado; The Elliott Law Offices, P.C., Mark D. Elliot, Alonit Katzman, Arvada, Colorado, for Petitioner.
No Appearance for Respondent Industrial Claim Appeals Office.
Thomas Pollart & Miller LLC, Brad J. Miller, Greenwood Village, Colorado, for Respondents Concrete Frame Associates, Inc., and American Zurich.
¶ 1 In this workers' compensation action, claimant, Arnold Archuletta, seeks review of a final order of the Industrial Claim Appeals Office (Panel), which set aside the portion of a decision by an administrative law judge (ALJ) granting him temporary total disability (TTD) benefits. The Panel determined that claimant was not entitled to TTD benefits because his "attending physician" had released him to full duty work. We set aside the Panel's decision and remand the case with directions to reinstate the ALJ's order.
¶ 2 Claimant worked as a carpenter for employer, Concrete Frame Associates, Inc. On a very windy day in February 2014, claimant's supervisor instructed him to secure materials, such as plywood, that could be blown by the wind. Claimant picked up a piece of plywood to secure it, but the wind immediately caught the plywood, causing claimant to "slid[e] into a steel beam." His knee hit "the edge of the beam and [he] pretty much kind of like blacked out for a few minutes." He sustained lacerations to his knee that required suturing at the emergency room.
¶ 3 The next day, claimant visited Premier Urgent Care for follow- up treatment. The physician imposed temporary restrictions and released him to modified duty. But, by March 5, the attending physician released him to full duty work with no restrictions. The physician reiterated this opinion in subsequent reports. On May 21, the attending physician determined claimant had reached maximum medical improvement (MMI), with no impairment or restrictions, and again released him to full duty. Based on the attending physician's MMI report, employer filed a final admission of liability (FAL).
¶ 4 Despite being released to full duty, claimant maintained that he was unable to work anything but light duty because of his injury, which his foreman permitted him to do. He was laid off one week after reaching MMI because, he said, he was "hurt on the job, " could "no longer perform [his] duties, " and "was on light duty."
¶ 5 Claimant therefore requested a division-sponsored independent medical examination (DIME) to challenge the attending physician's MMI finding. The physician who performed the DIME concluded that claimant was not at MMI. In addition, the DIME physician noted: "In consideration of his long professional career without difficulty, the inciting event on 02/24/2014 resulted in a dramatic change to his functional capacity for gainful employment and deserves further management."
¶ 6 After conducting a hearing, the ALJ awarded claimant TTD benefits. The ALJ found that claimant was unable "to perform his full job duties as a result of his industrial injury." The ALJ also noted that claimant understood "that he was laid off because his employer didn't have any light duty and he was unable to perform full duty work." The ALJ concluded that claimant established that "his wage loss is directly attributable to his industrial injury, " entitling him to TTD benefits commencing on the day he was laid off, May 28, 2014.
¶ 7 On review, though, the Panel held that the ALJ had misapplied the governing law. Citing Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), the Panel explained that under section 8-42-105(3)(c), C.R.S. 2015, once a claimant has been released to full duty work by his attending physician, as claimant had been here, TTD ...