Opinion
W.C. No. 4-376-567
May 9, 2002
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Hopf (ALJ) which reopened the claim and reinstated temporary total disability benefits. We set aside the award of temporary disability benefits and remand for the entry of a new order.
On November 14, 1996, the claimant suffered a compensable low back injury. As a result of the injury the claimant developed psychological problems. Dr. Pock opined the claimant reached maximum medical improvement (MMI) for the psychological injury in March 1998, with 8 percent psychological impairment. In April 1998, the respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits based on 29 percent whole person physical and mental impairment. The respondents also admitted liability for future psychological treatment. The claimant objected and requested permanent total disability benefits.
On February 23, 1999, ALJ Erickson found the claimant refused a bona fide offer of employment from the respondent-employer. Therefore, he denied the claim for permanent total disability benefits. On December 9, 1999, we affirmed the ALJ Erickson's order.
The claimant subsequently petitioned to reopen the claim based on an alleged worsening of his psychological injury. The ALJ found the claimant's psychological condition worsened to the point that by September 3, 1999, he was no longer at MMI. Further, the ALJ found the claimant's worsened condition caused an additional wage loss. Therefore, the ALJ reopened the claim and ordered the respondents to reinstate temporary total disability benefits commencing September 3, 1999.
On review, the respondents contend the ALJ erred as a matter of law and fact in finding that the claimant proved an additional wage loss from the worsened condition. In particular, the respondents contend the claimant established a prima facie case of permanent total disability before ALJ Erickson. Therefore, the respondents argue the claimant was precluded from proving any additional loss of wages. We disagree.
Section 8-42-105(3)(a), C.R.S. 2001, provides for the termination of 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), ( Ballinger) the court concluded that a worsening of condition after MMI does not automatically entitle a claimant to additional temporary total disability benefits. Instead, the Ballinger court held that additional temporary disability benefits are payable only if the worsened condition caused a "greater impact" upon the claimant's capacity to earn wages than existed at the time of MMI. In other words the worsened condition must cause an additional temporary wage loss.
Under the applicable law, a claimant is permanently and totally disabled if unable to earn any wages. Section 8-40-201(16.5)(a), C.R.S. 2001. At the December 1998 hearing, the claimant alleged he was incapable of working. However, ALJ Erickson found to the contrary. In so finding, ALJ Erickson did not determine whether the claimant established a "prima facie" case of permanent total disability. Rather, ALJ Erickson determined that because the claimant refused the respondent-employer's bona fide offer of employment, the claimant failed to prove an entitlement to sustain his burden to prove he was permanently and totally disabled. Consequently, ALJ Erickson expressly concluded the respondents were not required to "refute" the claimant's permanent and total disability "by proving claimant was capable of rehabilitation pursuant to § 8-42-111(3)."
On review of ALJ Erickson's order, we held ALJ Erickson misapplied the law insofar as he found that the existence of a single offer of modified employment precluded the claimant from establishing a prima facie case of permanent total disability. However, we did not conclude the claimant established a prima facie case of permanent total disability. Rather, we stated, "[A]ssuming, arguendo," that the claimant established a prima facie case of permanent total disability, the burden shifted to the respondents to prove the claimant refused a bona fide offer of employment which would preclude the claimant from receiving permanent total disability benefits under § 8-42-111(3), C.R.S. 2001. Because the record supported ALJ Erickson's factual finding that the respondents proved the claimant refused a bona fide offer of employment, we held the findings compelled the conclusion the respondents sustained their burden to prove the defense established by § 8-42-111(3). Therefore, we concluded that ALJ Erickson's erroneous application of the law was harmless error.
It follows that neither our order, nor ALJ Erickson's order, determined whether the claimant established a prima facie case of permanent total disability. Rather, ALJ Erickson inherently found the claimant retained the capacity to work and earn wages in at least one job which he refused, and we concluded that determination supported the denial of benefits even if the claimant had otherwise established a prima facie case of permanent total disability. Because there never was a determination the claimant proved permanent total disability but for the offer of employment, he is not now barred from asserting he had some residual earning capacity prior to the worsened condition.
The respondents also contend there is insufficient evidence in the record to support the ALJ's determination that the worsened condition affected the claimant's ability to earn wages. We conclude the ALJ's findings are insufficient to permit appellate review and, therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. 2001.
The question of whether the worsened condition caused a greater impact on the claimant's capacity to earn wages than existed at the time of MMI is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. We must uphold the ALJ's findings of fact if supported by substantial evidence in the record. However, we may set aside the order if the ALJ's findings are insufficient to support appellate review, or the ALJ has failed to resolve conflicts in the evidence. Section 8-43-301(8), C.R.S. 2001. Furthermore, even though an ALJ is not held to a standard of absolute clarity in expressing findings of fact, the findings should not be stated in a purely conclusory form which affords no meaningful basis to review the findings. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Here, the ALJ credited the claimant's testimony and the medical opinions of Dr. Pock, Dr. Martinez and Dr. Mendozza to find the claimant proved a change of condition. (see Finding of Fact 18 and Discussion and Conclusions of Law p. 5). Furthermore, the ALJ found that the change "affected Claimant's ability to earn wages." (Finding of Fact 19). However, the ALJ did not make any specific findings of fact concerning the evidence she relied upon to reach her conclusion that the claimant proved an additional loss of wages.
Rather, the ALJ cited the legal standard established in Ballinger and recognized that the claimant was not required to present medical evidence of additional restrictions to demonstrate that the worsened condition caused additional impairment of his capacity to earn wages. However, the ALJ did not identify the lay or expert evidence she relied upon to infer that the worsened condition additionally impaired the claimant's ability to earn wages. Consequently, the ALJ's "findings" are too conclusory for us to ascertain the basis for her finding that the claimant sustained his burden to prove and additional wage loss and the matter must be remanded to the ALJ to issue specific evidentiary findings articulating the basis of the award. Implicit in this decision is our determination that the record contains some evidence from which the ALJ might infer as a matter of fact that the claimant's ability to earn wages was additionally impaired by the worsened condition. However, we should not be understood as expressing any opinion concerning that factual issue.
IT IS THEREFORE ORDERED that the ALJ's order dated August 22, 2000, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 9, 2002 to the following parties:
Manuel Martinez, 4425 Logan, Denver, CO 80205
Colorado Brake and Supply, 5001 E. 52nd Ave., Commerce City, CO 80022
Centre Insurance Company, Michael Kramish, Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155
Clifford E. Eley, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Hurtado