Opinion
W.C. No. 4-303-116
October 13, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ awarded temporary disability benefits. The respondents contend the ALJ misapplied the law in awarding temporary total disability benefits after maximum medical improvement (MMI). We agree. Consequently, we set aside the contested portion of the order and remand for the entry of a new order.
In 1996, the claimant suffered a compensable back injury which required surgical treatment. On November 20, 1998, Dr. McLaughlin placed the claimant at MMI and released the claimant to return to modified work which did not require lifting more than 10 pounds, frequent bending or walking, or standing or sitting over 15 minutes at a time. The claimant testified that he looked for work within his restrictions but received no job offers.
On September 1, 1999, Dr. Reiss diagnosed the claimant as suffering a nonfusion of the lumbar spine at the level of the prior surgery and recommended a posterior fusion. Relying on Dr. Reiss's opinions, the claimant requested additional medical and temporary total disability benefits.
The ALJ found that the claimant proved he suffered a worsening of his condition from the industrial injury after November 20, 1998, and was no longer at MMI as of September 1, 1999. The ALJ also determined that the claimant is disabled from performing his regular employment as a result of the industrial injury. Consequently, the ALJ determined that the prior determination of MMI did not preclude the claimant from receiving temporary disability benefits effective September 1, 1999.
To establish entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that he left work as a result of the disability, that he was disabled for more than three regular work days, and suffered an actual wage loss. Section 8-42-103(1)(b), C.R.S. 2000. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In this context, the term "disability" refers to the claimant's inability to perform his regular employment. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Once the claimant establishes his initial entitlement to temporary disability benefits, he is entitled to continuing temporary disability benefits as long as the subsequent wage loss is "to some degree" the result of the injury, and none of the circumstances described in § 8-42-105(3), C.R.S. 2000 occurs. PDM Molding, Inc. v. Stanberg, supra. Insofar as pertinent, § 8-42- 105(3)(a), C.R.S. 2000, terminates temporary disability benefits when the claimant reaches MMI.
In City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the court concluded that a worsening of a condition after MMI does not entitle a claimant to additional temporary total disability benefits unless the worsened condition causes an additional temporary loss of wages. Ballinger involved a claimant who suffered a compensable back injury. The back injury precluded the claimant from performing his regular employment, and therefore, the claimant was awarded temporary total disability benefits. Four months after reaching MMI, the claimant suffered a shoulder injury while receiving treatment for the back injury. No further medical restrictions were imposed as a result of the shoulder injury. The Ballinger court concluded that, because the shoulder injury "caused no greater impact upon the claimant's temporary work capacity than he originally sustained as a result of the injury to his back" the claimant was not entitled to further temporary disability benefits as a result of the shoulder injury. (Emphasis in original)
Here, the ALJ erroneously determined that proof the claimant was physically restricted from performing his regular employment and was no longer at MMI was legally sufficient to support an award of temporary disability benefits commencing September 1, 1999. Consequently, the ALJ made no findings of fact concerning whether the claimant's worsened condition caused an additional temporary loss of wages, within the meaning of Ballinger. See also Dicamillo v. The Valley Inn Nursing Home, W.C. No. 4-292-687 (June 24, 1999). Under these circumstances, the ALJ's findings are insufficient to ascertain whether the claimant is entitled to additional temporary disability benefits, and the matter must be remanded for further findings of fact.
On remand, the ALJ shall determine if the claimant's worsened condition caused a greater impact upon the claimant's temporary work capacity than originally sustained as a result of the industrial injury, and make specific findings indicating the evidentiary basis for his determination. Based upon that determination, the ALJ shall issue a new order concerning the claimant's entitlement to temporary disability benefits after November 1998.
IT IS THEREFORE ORDERED that the ALJ's order dated March 10, 2000, is set aside insofar as it awarded temporary disability benefits commencing September 1, 1999. The matter is remanded to the ALJ for the entry of a new order as indicated above and consistent with Ballinger.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed October 13, 2000 to the following parties:
Lamarr S. Kreimeyer, 16229 E. Linvale Ave., Aurora, CO 80013
Concrete Pumping, Inc., c/o PUMPCO, 6560 Vine Ct., Denver, CO 80229-7411
Mitch Storey, Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy