Summary
In Stineman, we remanded the matter for the ALJ "to determine as a matter of fact whether the claimant's worsened condition caused any additional physical restrictions" which to some degree "caused the claimant to sustain additional wage loss."
Summary of this case from In re Falco, W.C. NoOpinion
W.C. No. 3-106-730
December 14, 1998
ORDER OF REMAND
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which awarded the claimant temporary total disability benefits commencing March 16, 1998. The respondents contend the ALJ misapplied the law because he failed to determine whether the claimant's worsened condition caused additional temporary wage loss. The respondents also argue that the claimant's failure to look for work mandates a denial of temporary disability benefits. We set the order aside and remand for entry of a new order.
The claimant sustained compensable injuries to both knees on November 19, 1992. The claimant was initially placed at maximum medical improvement (MMI) in January 1994. Subsequently, the claimant's knees worsened and she underwent two surgeries on each knee. The treating physician again placed the claimant at MMI in April 1996.
The claimant testified that her knee symptoms worsened subsequent to April 1996, and she requested an award of temporary total disability benefits commencing March 16, 1998. The ALJ awarded temporary total disability benefits, finding that the treating physician restricted the claimant to sedentary work on March 16. Moreover, the ALJ found that the "claimant's job for the respondent employer was not sedentary and the respondent employer has not offered the claimant a sedentary job."
On review, the respondents contend that the ALJ misapplied the law in awarding additional temporary disability benefits. Relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the respondents argue that the claimant failed to prove that the worsening of her condition caused any "additional" temporary wage loss. Instead, the respondents assert the ALJ incorrectly awarded benefits because the claimant was unable to perform her pre-injury employment. Because the ALJ may have misapplied the law, we remand for entry of a new order.
In City of Colorado Springs v. Industrial Claim Appeals Office, supra, the claimant reached MMI for an industrial back injury. Subsequently, while using a treadmill prescribed to maintain his condition, the claimant developed tendinitis in his shoulder. The claimant then sought an award of temporary total disability benefits, reasoning that once he developed tendinitis he was no longer at MMI, and his wage loss was again temporary.
However, the Colorado Springs court concluded that, because the ALJ found the tendinitis did not cause any additional restrictions or temporary wage loss, the claimant was not entitled to an award of temporary disability benefits. The court reasoned that once a claimant reaches MMI for an injury, all subsequent wage loss remains permanent unless a worsening of condition causes new restrictions which, in turn, cause additional impairment of the claimant's ability to earn wages. The court specifically stated that the worsening "of an original condition after a claimant reaches MMI does not itself entitle a claimant to renewed TTD benefits, unless the worsened condition causes an additional temporary loss of wages." 954 P.2d at 640.
Here, we agree with the respondents that the ALJ's award of benefits was predicated on the conclusion that because the claimant's condition worsened, and because she remained unable to perform her pre-injury employment, she was automatically entitled to temporary total disability benefits. However, the correct analysis is whether the claimant's worsened condition (after reaching MMI on April 8, 1996) resulted in restrictions which additionally impaired the claimant's ability to earn wages. On remand, the ALJ shall determine as a matter of fact whether the claimant's worsened condition caused any additional physical restrictions which "to some degree" caused the claimant to sustain additional wage loss. See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
We have considered the claimant's assertion that City of Colorado Springs v. Industrial Claim Appeals Office is distinguishable from this case because Colorado Springs involved two injuries to different parts of the claimant's body. However, it is clear from the court's opinion that its holding applies in situations where there is a worsening of the "original condition," not merely to cases involving a "second injury." City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d at 640; Sanchez v. Herschel R. Oliver, W.C. No. 3-103-338 (August 12, 1998).
We have also considered the claimant's argument that the evidence supports the inference that the worsening of her condition caused a restriction to "sedentary" employment. It is true that the treating physician's report dated March 16, 1998, states that the claimant is restricted to sedentary work. However, there is also evidence that, on February 19, 1996, the treating physician indicated the claimant was restricted to sedentary work with a maximum lifting capacity of five to ten pounds. Thus, the evidence is subject to conflicting inferences and conclusions concerning whether the restriction to sedentary employment was a "new" restriction in 1998. The ALJ must resolve this factual issue on remand.
Finally, we note that the claimant's failure to work after April 1996 and her failure to conduct a job search do not automatically disqualify her from receiving temporary total disability benefits. Black Roofing Inc., v. West, ___ P.2d ___ (Colo.App. No. 98CA0176, August 6, 1998). Although the ALJ may consider the absence of a job search in determining whether the worsened condition caused any additional wage loss, he must also consider other evidence from which it could be inferred that the worsening of condition was to some degree the cause of the wage loss.
IT IS THEREFORE ORDERED that the ALJ's order dated July 10, 1998, is set aside and the matter is remanded for entry a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed December 14, 1998 to the following parties:
Debryh Stineman, 2236 N. 17th St., Apt. E1, Grand Junction, CO 81501
Becky Siemers, La Villa Grande Care Center, 2501 Bookcliff Ave., Grand Junction CO 81501-6845
Lisa Cruz, Support Services, Inc., P.O. Box 22438, Denver, CO 80222
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
William Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondents)
BY: ____________