Opinion
W.C. No. 4-330-619.
June 14, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded temporary disability benefits. The respondents contend the award is contrary to the holding in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), because the evidence does not establish the claimant sustained an "additional temporary loss of wages greater than the claimant had originally sustained as the result of her original" injury. We affirm.
The claimant tore her right rotator cuff in an industrial accident which occurred in January 1997. The claimant underwent two surgeries to repair the right rotator cuff and was placed at maximum medical improvement (MMI) on September 9, 1999. A treating physician assessed an 18 percent whole person impairment based on reduced range of motion in the right upper extremity and residual mental impairment. On October 15, 1999, the respondents filed a Final Admission of Liability for permanent partial disability benefits based on the 18 percent rating.
When the claimant was performing pool therapy to recover from one of the surgeries on her right shoulder, she injured her left shoulder. However, no impairment rating was assigned for this injury when the claimant was placed at MMI.
In April 2000, the claimant was diagnosed with a tear of the left rotator cuff, and it is not now undisputed this injury is causally related to the right shoulder injury. Dr. Hall, another treating physician, opined the claimant was no longer at MMI on September 20, 2000, because the left shoulder was deteriorating and surgery was necessary. (Tr. pp. 26-27). In fact, surgery to the left rotator cuff was performed on October 26, 2000. Dr. Hall testified that by September 20, 2000, the claimant's left shoulder condition resulted in greater restrictions and limitations than existed in September 1999, and the "left upper extremity problem, alone, was going to keep her off work for that period." (Tr. pp. 28, 32).
The ALJ, relying principally on the testimony of Dr. Hall, found the claimant established the "left shoulder injury caused a greater impact upon the claimant's temporary work capability than she originally sustained as a result of the injury to her right shoulder." Consequently, the ALJ concluded the claimant is entitled to temporary disability benefits from September 20, 2000, to June 25, 2001, when the claimant again reached MMI.
Relying on City of Colorado Springs v. Industrial Claim Appeals Office, supra, the respondents contend the record does not support the award of temporary disability benefits commencing September 20. The respondents argue the record establishes the claimant sustained "no additional wage loss due to her worsened condition," and may not receive temporary disability benefits based on the worsening of the left shoulder. In support of this contention, the respondents cite the claimant's testimony that she has not worked since June 1997, and the claimant's belief the permanent restrictions to her right arm did not allow her to work. (Tr. p. 24). The respondents also argue that because the claimant was not working on September 20, 2000, she cannot show any actual wage loss caused by the injury. We find these arguments unpersuasive.
Insofar as the respondents argue that City of Colorado Springs v. Industrial Claim Appeals Office, supra, requires the claimant to establish an "actual wage loss," meaning that the claimant was working at the time of the worsened condition, we disagree. As we read City of Colorado Springs, in order to establish entitlement to additional temporary disability benefits the claimant must show the worsened condition resulted in increased physical restrictions (over those which existed on the original date of MMI), and that the increased restrictions caused a "greater impact" on the claimant's temporary "work capability" than existed at the time of MMI. 954 P.2d at 640. This conclusion is in accordance with the following language from our decision in Kreimeyer v. Concrete Pumping Inc., W.C. No. 4-303-116 (March 22, 2001):
Contrary to the respondents' argument, the critical issue in Ballinger [ City of Colorado Springs] is not whether the worsened condition actually resulted in additional temporary wage loss. Rather, relying on El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993), the court concluded that the question is whether the worsened condition has had a greater impact on the claimant's temporary work "capacity." In Donn, the claimant was not entitled to temporary total disability benefits for a voluntary retirement when she was medically released to part-time work. However, when the claimant's condition subsequently worsened and she was physically unable to perform even part-time work, she was awarded temporary disability benefits because the impaired work capacity was due to the injury and not the voluntary retirement. It follows that it is the impact of the claimant's work "capacity," not actual wage loss, which determines whether the claimant has established entitlement to temporary total disability benefits when there is a worsening of condition after MMI.
Other decisions reaching essentially the same conclusion include Goble v. Sam's Wholesale Club, W.C. No. 4-297-675 (May 3, 2001), and Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
We also reject the respondents' argument the evidence compelled the ALJ to find the claimant failed to prove any greater impairment of her capacity to earn wages on September 20, 2000, than existed on the original date of MMI. The question of whether the claimant proved increased disability, as measured by a reduction in her capacity to earn wages, was a question of fact for determination by the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Consequently, we must uphold the ALJ's finding the claimant proved additional temporary disability if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ credited the testimony of Dr. Hall that the worsening of the claimant's left shoulder condition resulted in restrictions and functional impairment which did not exist when the claimant was first placed at MMI in September 1999. Further, Dr. Hall testified the deterioration of the left shoulder was sufficient, standing alone, to restrict the claimant from any work. This testimony constitutes substantial evidence the claimant sustained a worsening of condition which resulted in increased physical restrictions reducing the claimant's capacity to earn wages beyond that which existed on the original MMI date.
The respondents' assertion notwithstanding, the ALJ was not required to infer the claimant had no residual earning capacity at the time she was placed MMI in September 1999. Although the treating physician placed substantial restrictions on the claimant, she did not prohibit the claimant from performing any work, nor did she opine the claimant was permanently and totally disabled from work. Moreover, the respondents did not admit for permanent total disability, but limited the 1999 Final Admission to permanent partial disability benefits. Implicit in that admission was the respondents' position that, despite the residual impairment, the claimant retained the ability to earn some wages in employment. See § 8-40-201(16.5)(a), C.R.S. 2001 (defining permanent total disability as the inability to earn any wages in the same or other employment). Thus, the record supports the ALJ's necessary inference that the claimant retained some earning capacity when she was first placed at MMI in September 1999. Cf. Kreimeyer v. Concrete Pumping Inc., supra.
We recognize the claimant testified that she believed the 1999 permanent restrictions on use of her right arm rendered her unable to work. However, that was merely the claimant's opinion, and the ALJ implicitly concluded the claimant was not correct in this supposition and respondents were correct when they filed the Final Admission for permanent partial disability.
The claimant argues that City of Colorado Springs v. Industrial Claim Appeals Office, supra, was wrongly decided. However, we must follow published decisions of the Court of Appeals. CAR 35 (f). Regardless, we have concluded City of Colorado Springs does not bar the award of temporary disability benefits under the facts of this case.
IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 2001, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 14, 2002 to the following parties:
Judy Lively, 1018 E. Boulder, Colorado Springs, CO 80903
Digital Equipment Corporation, 305 Rockrimmon Blvd., Colorado Springs, CO 80919
Liberty Mutual Group (Texas), 2100 Walnut Hill Ln., #100, Irving, TX 75016
Junie Wolfe, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
By: A. Hurtado