Opinion
W.C. No. 4-669-016.
September 3, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated May 15, 2008 that found the claimant had failed to prove that she suffered a worsening of condition so that her work injury, rather than her termination of employment, was the cause of her wage loss. The ALJ denied the claim for temporary total disability (TTD). We affirm.
This matter has been before us previously. We affirmed an order of ALJ Harr that found the claimant was responsible for her termination and denied the claim for TTD benefits after November 4, 2005, the date of her termination. Here the claimant sought reinstatement of TTD benefits commencing November 26, 2005, arguing that her condition had worsened since the termination of her employment.
The ALJ's pertinent findings of fact are as follows. On November 26, 2005, Dr. Boulder placed working restrictions against lifting over five pounds or making more than limited use of her right arm. The claimant's supervisor persuasively testified that the employer could have accommodated the November 26, 2007 work restrictions by Dr. Boulder. Dr. Boulder agreed that the modified duty described by the supervisor was within the November 26, 2007 restrictions. The employer did not offer the claimant any modified duty work after her termination on November 4, 2005. Dr. Boulder released the claimant to regular work on January 4, 2008. The claimant sought TTD benefits from November 26, 2007 to January 4, 2008.
The ALJ made the following conclusions. The claimant had failed to prove that she suffered a worsening of condition so that her work injury, rather than her termination of employment, was the cause of her wage loss. The authorized treating physician (ATP) did not document that the claimant was worse. The claimant had only a short period of work restrictions after November 26, 2007, which were no more restrictive than the restrictions that the claimant suffered after her work injury in November 2005. The November 2007 restrictions could have been accommodated by the employer but for the fact that the claimant was responsible for the termination of her employment. The claimant's wage loss was still due to the fact that she quit her job and was not caused by the work injury. The ALJ denied the claim for TTD benefits.
On appeal, the claimant contends that the ALJ erred in failing to award TTD benefits. The claimant's argument is summarized as follows. The ATP released the claimant to return to regular employment. Thereafter, the ATP imposed physical restrictions, which prevented the claimant from returning to her regular employment. The claimant suffered a worsening of her condition and the respondents did not offer modified duty employment within the claimant's newly imposed physical restrictions. Therefore, TTD benefits must be ordered from November 26, 2007, the date when the ATP imposed the new work restrictions, until the ATP released the claimant to regular work on January 4, 2008. We disagree.
The claimant's reliance on Jarrett v. Adarand, W.C. No. 4-273-179 (January 24, 2007) is misplaced. In Jarrett, relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), we made the following observations:
A subsequent worsening of condition does not necessarily entitle the claimant to an award of temporary disability benefits even if the claimant is unable to return to the preinjury employment. To the contrary, the claimant must prove that the worsening resulted in additional physical restrictions, which, in turn, caused impairment of the claimant's residual earning capacity beyond that which existed at [maximum medical improvement]. If the claimant fails to satisfy these elements of proof, it is presumed that the impairment of the claimant's earning capacity remains permanent.
Slip op. at 2-3. We rejected the respondents' argument that the claimant could not sustain any additional temporary loss of wages because he never returned to work. Instead, we adhered to our previous conclusion that the critical issue in cases controlled by City of Colorado Springs is not whether the worsened condition actually resulted in additional temporary wage loss, but whether the worsened condition has had a greater impact on the claimant's temporary work capacity. In Jarrett, the ALJ found that the claimant's work capacities were "markedly reduced" since the reopening of his claim and we determined that the ALJ's finding supported an award of TTD benefits.
In contrast to Jarrett, here the ALJ found that the claimant had only temporary restrictions that were not more restrictive than she originally suffered. The ALJ further found that the ATP had not documented that the claimant was worse. The ALJ, citing Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), noted that § 8-42-105(4) was not a permanent bar to the receipt of TTD benefits and such benefits could be awarded if the claimant's worsened condition caused the wage loss. However contrary to the claimant's argument, she does not automatically have a right to reinstatement of TTD benefits as soon as her status changes from a full duty release to a release with some restrictions. The claimant must prove that she is worse and that wage loss is now due to the work injury rather than the termination. The ALJ concluded that the claimant had failed to prove that she suffered a worsening of condition so that her work injury rather than her termination of employment was the cause of her wage loss.
Claimant argues that the ALJ erred because under the doctrine established by Anderson v. Longmont Toyota, Inc., she is entitled to TTD benefits unless and until she had been offered modified employment. We disagree with claimant's interpretation of the rule set forth by Anderson.
As we read Anderson, § 8-42-105(4), C.RS. 2007 bars TTD wage loss claims when the voluntary or for cause termination of modified employment causes the wage loss, but not when the worsening of a prior work-related injury causes the wage loss. In Hammack v. Falcon School District 4, W.C. No. 4-637-865 (October 23, 2006); aff'd Hammack v. Industrial Claim Appeals Office, No. 06CA2344 (Colo.App. Dec. 6, 2007) (not selected for publication), as here the claimant had not shown that the additional work restrictions caused a limitation on her earning capacity which did not exist when she resigned. In Hammack as here, the record contains evidence indicating that the employer would have been willing to provide modified employment within the increased work restrictions. Under those circumstances, it was determined in Hammack that the additional restrictions, by themselves, did not trigger a post-separation decline in the claimant's earning capacity.
Here the ALJ found that the claimant does not automatically have a right to reinstatement of TTD benefits as soon as her status changed from a full duty release to a release with some restrictions. Rather, the claimant must prove that she is worse and that the wage loss is now due to the work injury instead of the termination. We agree that the mere imposition of increased restrictions does not compel the conclusion that the claimant is entitled to TTD. Therefore, we decline to interfere with the ALJ's determination that the claimant failed to prove that she suffered a worsening of condition so that her work injury, rather than her termination of employment, was the cause of her wage loss.
The claimant further argues that there was clearly a worsening of the claimant's physical condition. However, the ALJ specifically found that the ATP did not document that the claim was worse. Findings of Fact, Conclusions of Law, and Order at 4, ¶ 24. We are not persuaded to interfere with this finding.
The question of whether a worsened condition has caused the claimant's wage loss following a termination from employment remains one of fact for determination by the ALJ. Fatin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007); Hammack v. Falcon School District 49. supra. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003
The claimant saw the ATP on November 18, 2007 and reported she continued to experience pain in her right forearm, arm and shoulder, particularly after repetitive lifting. Exhibit C at 28. The ATP noted that the claimant had a full range of motion, but had some tenderness in the anterior right shoulder and with reaching overhead. The ATP diagnosed only right upper limb pain, refilled the claimant's ibuprofen and referred her for myofascial release treatments, as well as a surgical evaluation. Exhibit C at 28. On November 26, 2007, the claimant's restrictions were no repetitive lifting over 5 lbs. and limited use of her right arm. Exhibit C at 30. The ATP next saw the claimant on January 4, 2008 and at that point released her to work without restrictions. Exhibit C at 26. On the issue of worsening the claimant compares the November 26, 2007 restrictions to November 25, 2005 when the claimant was given a prescription of Motrin and put on light duty with no pushing or pulling over five to 10 pounds. Exhibit 2 at 30.
The record can certainly be read as showing that the physical restrictions on November 26, 2007 were greater then the restrictions on November 25, 2005. However, we cannot say that the ALJ erred as a matter of law in finding that the ATP did not document that the claim was worse. The ALJ is entitled to look at the totality of the evidence in the record and not just the slight variance in the physical restrictions. The ALJ's finding that the ATP did not document that the claimant was worse is a plausible inference to be drawn from the record. Therefore, we decline to interfere with the ALJ's determination that the claimant failed to prove that she suffered a worsening of condition so that her work injury, rather than her termination of employment, was the cause of her wage loss.
IT IS THEREFORE ORDERED that the ALJ's order dated May 15, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
GLORIA HARRIS, 1015 FONTMORE ROAD #204, COLORADO SPRINGS, CO, Claimant).
DIOCESE OF COLORADO SPRINGS, Attn: CHRISTIANNA FOGLER, C/O: ST. STEPHENS EPISCOPAL DAY SCOOL, COLO SPGS, CO, (Employer).
LIBERTY MUTUAL, Attn: JENNIFER NASSAR/TIFFANY DERICHSWEILER, IRVING, TX, (Insurer).
ALEXANDER RICCI, PC, Attn: WILLIAM ALEXANDER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
MCELROY, DEUTSCH, MULVANEY CARPENTER, LLP, Attn: TIFFANY L. SCULLY, ESQ., DENVER, CO, (For Respondents).