Opinion
W.C. No. 4-122-742
August 28, 1998
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Wheelock (ALJ), which awarded the claimant temporary disability benefits commencing January 11, 1995. The respondent contends the ALJ erred because the evidence does not support a finding that the claimant sustained any wage loss or loss of earning capacity on or after January 11. We set the order aside and remand for entry of a new order.
The claimant sustained compensable injuries when he was electrocuted on January 16, 1992. The claimant reached at maximum medical improvement (MMI) in November 1994.
As a result of the electrocution, the claimant experienced problems with his right leg which occasionally caused it to "give out." In December 1994 the claimant was hanging Christmas ornaments when the leg gave out causing him to fall and strike his right shoulder.
On January 11, 1995, the claimant was examined by Dr. Tyler who opined the claimant was suffering from a "possible supraspinatus versus infraspinatus tendinitis/partial tear." The claimant ultimately underwent shoulder surgery in December 1996.
Under these circumstances, the ALJ concluded the claimant was entitled to temporary total disability benefits commencing January 11, 1995. In support, the ALJ found that the shoulder injury was a compensable consequence of the electrocution, and that the claimant "was unable to perform his job with the [respondent] because of the consequences of his industrial injury."
On review, the respondent contends the award of temporary total disability benefits is contrary to the evidence because the claimant failed to prove that the shoulder injury caused any loss of earnings or earning capacity which did not already exist as a result of the electrocution. The respondent points out that in December 1994 the claimant was not working, and did not actively seek work until January 1997. Moreover, the claimant accepted Public Employees Retirement Association (PERA) benefits in February 1995. The respondent cites City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), as authority for its position. Because the ALJ's findings are insufficient to support appellate review, we remand for entry of a new order.
In City of Colorado Springs v. Industrial Claim Appeals Office, supra, the court stated that the occurrence of a second injury or 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. In support of this conclusion, the court reasoned that once the claimant reaches MMI, temporary wage loss ceases and any residual wage loss is the result of permanent disability. Thus, in order to receive temporary disability benefits based on a "second injury" or a worsening, the claimant must prove that the worsening resulted in additional physical restrictions which, in turn, caused a temporary wage loss.
However, we do not understand City of Colorado Springs v. Industrial Claim Appeals Office to require proof that the additional physical restrictions be the sole cause of the claimant's additional temporary loss of earnings or earning capacity. To the contrary, all that is required is that the additional physical restrictions be to "some degree" the cause of the temporary wage loss. PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Thus, if the claimant proves new physical restrictions which impair his ability to obtain employment, he need not prove that he conducted an actual job search in order to receive temporary disability benefits. Black Roofing Inc. v. West, ___ P.2d ___ (Colo.App. No. 98CA0176, August 6, 1998); Denny's Restaurant Inc. v. Husson, 746 P.2d 63 (Colo.App. 1987).
Moreover, City of Colorado Springs v. Industrial Claim Appeals Office does not require the claimant to present medical evidence of new restrictions. In Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997), the court held that there is no statutory requirement for a claimant to present medical evidence of work restrictions as a prerequisite to recovering temporary disability benefits. We subsequently extended the Lymburn principle to a situation where the claimant sought to reopen his claim due to a worsened condition. See Tuttrow v. Gosney Sons, Inc., W.C. No. 3-102-245 (October 24, 1997), aff'd. on other grounds, Gosney Sons, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA1948, May 28, 1998).
Here, the ALJ found that in December 1994 the claimant sustained a new or second injury causally connected to the original industrial injury. However, the claimant had already reached MMI for the original industrial injury, and the ALJ did not find whether the 1994 injury resulted in additional restrictions which caused a new, temporary loss of earning capacity. To the contrary, the ALJ appears to have held that the mere occurrence of the 1994 injury, together with the fact that claimant was unable to return to his preinjury employment, was sufficient to establish the claimant's right to temporary disability benefits commencing January 11.
To the extent the ALJ concluded that the mere occurrence of the 1994 injury entitled the claimant to additional temporary disability benefits, she erred. City of Colorado Springs v. Industrial Claim Appeals Office requires the ALJ to find whether the 1994 injury caused additional physical restrictions which again temporarily impaired the claimant's ability to earn wages. In reaching this result, we recognize the claimant's contention that City of Colorado Springs v. Industrial Claim Appeals Office was wrongly decided. However, we are bound by published opinions of the Court of Appeals. C.A.R. 35(f). Consequently, the matter must be remanded for additional findings in accordance with City of Colorado Springs.
In reaching this result we reject the respondent's assertion that the record contains no evidence which would support an award of temporary disability benefits commencing in January 1995. Dr. Weinstein's note dated January 20, 1995, states that the claimant was unable to "elevate his arm to shoulder level and above which is distinctly different from his pre-fall status in December." Further, the permanent lifting restrictions imposed by Dr. Weinstein in March 1997 appear to be greater than those which existed at the time of the functional capacity evaluation in November 1994. This evidence, taken with the claimant's testimony concerning the effects of the December 1994 shoulder injury, could support an award of temporary total disability benefits. Lymburn v. Symbios Logic, supra.
Moreover, the facts that the claimant was not looking for work, and had retired from his job with the respondent, do not preclude an award of temporary disability benefits. To the extent the claimant's ability to procure alternative employment was impaired by the 1994 injury, the failure to search for work does not vitiate an award. Black Roofing, Inc. v. West, supra. Similarly, the fact the claimant had retired due to difficulties caused by the original injury does not preclude the ALJ from finding impaired earning capacity caused by the shoulder injury. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Trujillo v. Valleylab, Inc., W.C. No. 4-218-547 (February 7, 1996).
IT IS THEREFORE ORDERED that the ALJ's order dated June 3, 1997, is set aside insofar as it awarded temporary total disability benefits commencing January 11, 1995. The matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 28, 1998 to the following parties:
Donald G. Wujcik, 645 High Rd., Divide, CO 80814
City of Colorado Springs, 701 N. Circle Dr., Colorado Springs, CO 80909-5121
Debra Patterson, City of Colorado Springs, P.O. Box 1575-1370, Colorado Springs, CO 80901
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For Claimant)
Chad J. Hessel, Esq., 108 E. St. Vrain, #20, Colorado Springs, CO 80903 (For Respondent)
By: _______________________