Opinion
W.C. No. 4-440-517.
April 17, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated April 17, 2006 that ordered them to pay temporary disability benefits and medical benefits. We dismiss the petition to review the order insofar as it awards medical benefits and otherwise we affirm.
A hearing was held on the issues of the claimant's entitlement to medical benefits and temporary disability benefits. Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant was employed as a restaurant manager, and was injured on January 30, 1999 while trying to stop a physical altercation in the restaurant. She underwent extensive medical treatment that included several surgeries and continued to experience symptoms, including pain and spasms in her shoulder and neck. On January 4, 2002 the claimant underwent surgery on her elbow, following which she reported continued pain in her right shoulder and neck. On September 24, 2006, Dr. Hattem, who was an authorized treating physician, determined that she had reached maximum medical improvement with impairment of her wrist and elbow. Dr. Hattem stated that her shoulder problems were not related to the industrial injury. By an order dated November 7, 2002 the ALJ determined that the right shoulder problems were related to her injury and that the claimant was not at maximum medical improvement. The claimant underwent additional treatment and diagnostic tests, including an MRI, which revealed a tear of the supraspinatus tendon. The respondents filed a final admission on October 22, 2003 denying liability for any further medical benefits. The claimant did not request or undergo a Division sponsored independent medical examination (DIME). However, on March 25, 2004, the claimant filed a petition to reopen based upon her alleged worsened condition, and supported by a report from Dr. Labosky stating that her right shoulder condition had deteriorated. Following a hearing the ALJ entered an order granting the petition to reopen and ordering the respondents to pay for medical treatment for the right shoulder. The order, dated December 16, 2004, denied medical benefits in the form of an MRI of the claimant's cervical spine and reserved all other issues. The ALJ found in the order under review here that the December 16, 2004 order did not determine whether the claimant had sustained an injury to her cervical spine.
The ALJ further found in this order that on January 18, 2005, the claimant was reexamined by Dr. Labosky, who diagnosed right shoulder impingement syndrome, a rotator cuff tear, and arthritis, and restricted the claimant from lifting over one pound with the right arm. He performed surgery to repair her right shoulder problems. On August 2, 2005, the claimant underwent a cervical MRI at the recommendation of Dr. Budnick, who diagnosed a herniated cervical disc related to the compensable injury. On February 9, 2006, Dr. Griffis performed an independent medical examination of the claimant, and diagnosed a cervical strain, chronic right upper extremity pain, and a cervical disc protrusion with possible nerve root impingement. He opined that the claimant's cervical condition was related to her compensable injury. Resolving the conflicting medical evidence, the ALJ found that the claimant had sustained an injury to her cervical spine in the compensable accident, and that she had additional restrictions imposed following the March 28, 2005 surgery.
Based upon his factual findings, the ALJ ordered the respondents to pay for reasonable and necessary medical treatment of the claimant's cervical spine condition and temporary total disability benefits beginning on March 28, 2005.
The respondents appealed the ALJ's order and argue that the claimant's request for medical treatment for her cervical spine is barred by the doctrines of res judicata, law of the case, and collateral estoppel. The respondents also argue that the ALJ erred in awarding temporary total disability benefits because the claimant's restrictions did not increase following the worsening of her condition. We are unpersuaded that the ALJ erred.
I.
The respondents first argue that the ALJ here was barred by equitable doctrine from adjudicating the relatedness of the claimant's cervical spine problems to her compensable injury. They note that when the claimant litigated her petition to reopen she claimed entitlement to medical treatment for her cervical spine condition, which was denied by the ALJ in the December 16th order. However, we conclude that the order in this regard is not final and reviewable.
Section 8-43-301(2), C.R.S. 2002, provides that a party dissatisfied "with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review." Orders which do not either award or deny benefits or penalties are not final and reviewable. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Further, an order may be partially final and partially interlocutory. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
In light of these principles, we have previously held that a general award of medical benefits is not final and reviewable unless the record demonstrates that liability for specific medical treatment was at issue. The rationale for these decisions is that the respondents maintain the right to contest the reasonableness and necessity for particular medical benefits. E.g., Rosas v. DDC Interiors, Inc., W.C. No. 4-364-828 (August 18, 1999); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994).
Here, the ALJ's order does not award or deny the claimant any particular medical benefit. In fact, no particular benefit was requested. Further, the ALJ did not determine whether any previous treatment was reasonable, necessary, and related to the industrial injury. When the ALJ inquired of the claimant's attorney whether any particular bills or treatment were disputed, he replied that, "It's just future treatment, Judge." Tr. (3/1/06) at 3. Under these circumstances, this portion of the ALJ's order is interlocutory and not currently subject to review. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
II.
The respondents also argue that the ALJ erred in awarding temporary total disability benefits. They argue that because the claimant's physical restrictions remained essentially the same at the time she reached MMI and following her surgery in March 2005 she was not entitled to additional temporary total disability benefits following the worsening of her condition. However, because the ALJ correctly applied the applicable law and his factual findings are supported by substantial evidence, we affirm his order in this respect.
The applicable law is well-established. Section 8-42-105(3)(a), C.R.S. 2006, terminates temporary total disability benefits when the claimant reaches MMI. A worsening of condition after MMI may entitle the claimant to additional temporary disability benefits if the worsened condition caused a "greater impact" on the claimant's temporary work capacity than existed at the time of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
We have previously ruled that City of Colorado Springs v. Industrial Claim Appeals Office, supra, does not require the claimant to establish an "actual wage loss," where, for example, the claimant was not working immediately before the worsened condition. We stated in Lively v. Digital Equipment Corporation, W.C. No. 4-330-619 (June 14, 2002) that: "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."
Furthermore, in Kreimeyer v. Concrete Pumping Inc., W.C. No. 4-303-116 (March 22, 2001), we concluded 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." See also El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Ridley v. K-Mart Corp., W.C. No. 4-263-123(May 27, 2003) ; Goble v. Sam's Wholesale Club, W.C. No. 4-297-675 (May 3, 2001); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998). We adhere to our prior conclusions. It follows that it is the impact of the claimant's work "capacity," not proof of an actual wage loss, which determines whether the claimant has established entitlement to TTD benefits in connection with a worsening of condition after 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 findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. 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).
As the respondents correctly recognize, the ALJ's dispositive findings regarding the claimant's entitlement to temporary total disability benefits following the worsening of her condition are that she suffered increased restrictions, that she was "excused from any work," and that she suffered "increased disability" since the date of MMI. See Findings of Fact, Conclusions of Law, and Order at 7, ¶ 46. However, contrary to the respondents' argument, the claimant's testimony provides substantial evidence supporting these findings. Indeed, the respondents appear to concede as much in stating that "the only support for this Finding [referring to ¶ 34 of the order] is the Claimant's own testimony." Brief in Support of Petition to Review at 11. They argue, however, that the claimant's testimony "is so obviously biased" that, as a matter of law, it cannot support a factual finding concerning the claimant's disability following her surgery. Even assuming the correctness of the respondents' assertion, the argument is erroneous. The extent of the ALJ's reliance on medical evidence as opposed to the claimant's anecdotal reports of her symptoms and her perceptions of her own limitations is a matter for the ALJ to consider in weighing the evidence. It is evident from the order that the ALJ did rely on the claimant's perceptions of her own limitations, as well as on the medical evidence. There is no statutory requirement that the claimant present evidence of a medical opinion of an attending physician to establish her physical disability. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Rather, the claimant's testimony alone can be sufficient to establish a temporary "disability." Lymburn v. Symbios Logic, supra. Merely because that testimony is "biased" in favor of the claimant's case does not render it incapable of supporting a factual finding. Under these circumstances, the ALJ's order is supported by substantial evidence and by the correct application of the law, and we decline to disturb it.
IT IS THEREFORE ORDERED that the petition to review the portion of the ALJ's order dated April 17, 2006, awarding medical benefits is dismissed without prejudice.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order dated April 17, 2006, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Annie Moss, 7029 Taft Court, Colorado Springs, CO 80911
Denny's Restaurants, c/o D. Clay Thornton, Esq., 950 17th Street, 21st Floor, Denver, CO 80202 Continental Casualty Company/RSKCo, Gerald Archeaux, P.O. Box 4934 Houston, TX 77210 Richard M. Lamphere, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant) D. Clay Thornton, Esq., 950 17th Street, 21st Floor, Denver, CO 80202 (For Respondents)