Opinion
W.C. Nos. 4-599-288 4-621-276.
May 5, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) in these consolidated claims which denied temporary disability benefits. We affirm.
On July 16, 2003, the claimant suffered an admitted slip and fall injury. The claimant was diagnosed and treated for a right ankle sprain. The claimant was temporarily disabled from work on July 16 and July 17, 2003, but resumed modified employment between July 18 and October 28, the date she was released to resume her regular employment. Dr. Smith placed the claimant at maximum medical improvement (MMI) for the right ankle injury on July 7, 2004.
The ALJ found the claimant's lost time from work between July 25, 2003 and July 16, 2004 was not related to the 2003 industrial injury. Therefore, the ALJ denied the request for temporary disability benefits for the 2003 injury claim.
On July 17, 2004 the claimant sustained an admitted back injury while lifting a patient. Dr. Irish released the claimant to modified employment on July 22, 2004, but removed the claimant from work on July 23 and 24. On July 25, 2004 Dr. Smith again released the claimant to modified employment.
The ALJ found the employer mailed the claimant an offer of modified employment on July 23, 2004, which the claimant declined. (Finding of Fact 14). Therefore, the ALJ determined the claimant was barred from receiving temporary disability benefits for the 2004 injury pursuant to § 8-42-105(3)(d), C.R.S. 2004. The claimant timely appealed.
I.
On review, the claimant contends the ALJ erroneously found the claimant failed to prove the 2003 injury caused a "disability." Therefore, the claimant argues the ALJ erroneously denied the claim for temporary disability benefits. We perceive no reversible error.
To recover temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that she was disabled for more than three regular work days and that she suffered an actual wage loss. Section 8-42-103(1)(b), C.R.S. 2004. 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 her regular employment. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Because the ALJ found the claimant was provided modified employment two days after the 2003 injury, she properly determined the claimant failed to establish her entitlement to temporary disability benefits for the 2003 injury. Therefore, the ALJ's error if any, in finding the claimant failed to prove the 2003 injury caused a "disability," was harmless and does not afford us grounds to grant appellate relief. See § 8-43-310 C.R.S. 2004; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
Moreover, we reject the claimant's contention that she is entitled to temporary disability benefits for time spent attending medical appointments during school or non-work hours. Temporary disability benefits are designed to compensate for an actual loss of wages, not the value of the claimant's time away from the employment. Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Romero v. U-Let-Us Skycap Services, Inc., 740 P.2d 1004 (Colo.App. 1987).
Here, the record supports the ALJ's determination that the claimant failed to prove she lost any wages to attend the medical appointments. Indeed, the record contains evidence the claimant was paid 16 hours a week to attend school regardless of whether she actually attended the classes. (Tr. pp. 38, 71, 72).
II.
Next, the claimant contends the ALJ erroneously ignored evidence that she suffered a compensable back injury on July 16, 2003. We conclude the ALJ properly determined she lacked jurisdiction to hear the claimant's challenge to Dr. Smith's opinion concerning the cause of the low back condition.
Section § 8-42-107(8), C.R.S. 2004, provides that an authorized treating physician's determination of MMI is binding unless the party disputing the determination requests a Division-sponsored independent medical examination (DIME). Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). It is now well established that the treating physician's determination of MMI includes a determination of the cause of the claimant's medical condition. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
In this case, the claimant did not obtain a DIME to challenge Dr. Smith's determination of MMI for the 2003 industrial injury and Dr. Smith's corresponding failure to find that the low back symptoms were a product of that injury. Consequently, the ALJ did not err insofar as she refused to consider evidence upon which the claimant relies to prove that the 2003 industrial injury resulted in a compensable back problem.
III.
Concerning the claim for temporary disability benefits after July 25, 2004, the claimant contends she had no notice the respondents intended to contest liability for temporary disability benefits based on § 8-42-105(3)(d), C.R.S. 2004. Therefore, the claimant asserts the ALJ's denial of benefits was a due process violation. Alternatively, the claimant argues the record fails to support the ALJ's finding the claimant declined a written offer of modified employment. We disagree.
Section 8-42-105(3)(d) provides that temporary disability benefits terminate when the claimant fails to begin an written offer of modified employment. Because the statute suspends the respondents' liability for temporary disability benefits, the statute is an affirmative defense. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). To protect the parties' due process rights, an affirmative defense must be explicitly plead and is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See C.R.C.P. 8(c); Kersting v. Industrial Commission, supra; Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963); Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, procedural due process may be waived by the failure to object to the introduction of evidence, and by exercising the rights of cross-examination and the presentation of evidence in opposition to the defense. Bill Dreiling Motor Co. v. Schultz, 168 Colo. 59, 450 P.2d 70 (Colo. 1969); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
As argued by the claimant, the respondents failed to explicitly endorse the termination defense in their response to the claimant's Application for Hearing. Neither did the respondents endorse the defense at the commencement of the hearing. Therefore, we agree with the claimant that the respondents' reference to a "Rule IX offer of modified employment" defense in their August 18, 2004 objection to the claimant's motion for consolidation of the claims was alone insufficient to provide notice of the defense.
However, the claimant did not object to the portion of the respondents' hearing exhibit 8 which included a letter to the claimant dated July 23, 2004 from employer's Worker's Compensation Analyst, Kathy Williams (Williams). (Tr. p. 23-26). The letter offered the claimant light duty work within the restrictions imposed by Dr. Irish.
Further, Williams testified without on objection that modified work within the claimant's medical restrictions was available between July 23 and July 30, but the claimant declined to accept an offer of such employment because she did not feel she could work under the restrictions imposed by Dr. Irish. (Tr. p. 61). Further, on redirect examination, the claimant's attorney asked Williams if she knew why the claimant believed she could not perform the modified employment approved by Dr. Irish. (Tr. p. 80). Based upon our review of the record, this line of questioning did not relate to any issue other than the claim for temporary disability benefits for the 2004 injury. Under these circumstances, we conclude the record supports the ALJ's implicit determination that the defense was tried by consent, and the claimant waived objection to the ALJ's consideration of the § 8-42-105(3)(d) defense. See Mullings v. Marriott Distribution Center, W.C. No. 4-484-108 (November 28, 2003), aff'd. Marriott Distribution Center v. Industrial Claim Appeals Office, (Colo.App. 03CA2433, July 15, 2004) (not selected for publication).
Moreover, Williams' testimony and the respondents' hearing exhibit 8 contain substantial evidence to support the ALJ's finding that the claimant failed timely to begin a written offer of modified employment, within the meaning of § 8-42-105(3)(d). Therefore, the ALJ's finding is binding on review and the existence of evidence which might support a contrary inference is immaterial. See § 8-43-301(8), C.R.S. 2004; Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999), (existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion).
III.
Finally, the claimant contends the ALJ's failure to determine her average weekly wage (AWW) was reversible error, because that issue was explicitly endorsed for adjudication and both parties presented evidence from which the ALJ could have calculated the AWW. We disagree.
As argued by the claimant, the issue of AWW was endorsed for adjudication. However, at the commencement of the hearing, claimant's counsel clarified that the AWW dispute applied to the claim for temporary disability benefits. (Tr. p. 6).
Because we uphold the ALJ's order denying temporary disability benefits, the ALJ's failure to determine AWW was not prejudicial, and thus, not reversible error. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ's order dated November 26, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Dona Halsey
Serena Tisby, Centennial, CO, Kathy Williams, Spalding Rehabilitation, Aurora, CO, Zurich Insurance Company, Denver, CO, Jack Kintzele, Esq., Denver, CO (For Claimant).
Cindy Slevin, Esq. and Dawn Watts, Esq., Denver, CO, (For Respondents).