Opinion
W.C. No. 4-677-511.
August 17, 2011.
ORDER
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated March 23, 2011 that denied their request to terminate temporary total disability (TTD) benefits. We set aside the order insofar as it failed to determine whether a report from an attending physician constituted a written release to return to regular employment which would support termination of TTD benefits under § 8-42-105(3)(c) C.R.S.
The claimant suffered an admitted industrial injury on February 1, 2006. The claimant injured her left hip and right shoulder. The claimant subsequently performed modified duty for the employer. The claimant submitted a letter of resignation on March 19, 2008. On May 8, 2008, the claimant reached maximum medical improvement (MMI) and was given an impairment rating by Dr. Raschbacher. Dr. Raschbacher imposed work restrictions.
On July 16, 2008, the claimant visited Dr. Stull who determined that the claimant's symptoms had worsened. On September 9, 2009, Dr. Stull recommended left hip replacement surgery. The claimant underwent surgery on October 23, 2009, and on the same date, respondents filed a General Admission of Liability and reopened the claim. However, the respondents subsequently filed a Petition to Terminate the claimant's TTD benefits effective March 24, 2008 based on her voluntarily resignation from the employer.
The ALJ found that the claimant voluntarily resigned from employment and thus she was responsible for her termination. However, the ALJ found that the claimant had suffered a worsening of her left hip injury that caused a subsequent wage loss and therefore she was entitled to TTD benefits. The ALJ therefore denied the respondents' request to terminate TTD benefits. The respondents bring this appeal.
I.
The respondents first contend that the ALJ erred in awarding TTD benefits based upon a worsening of the claimant's condition, despite finding that the claimant was responsible for her termination because there was no actual wage loss as a result of the worsening. We are not persuaded to interfere with the ALJ's order on this ground.
The termination statutes provide that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." Sections 8-42-103(1)(g) C.R.S., 8-42-105(4) C.R.S.; see also Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). However, in Anderson v. Longmont Toyota Inc., the Supreme Court held that the termination statutes do not bar temporary disability wage loss claims when the worsening of a prior work-related injury incurred during that employment causes the wage loss.
The burden of proof to establish a subsequent worsening of condition and consequent wage loss is on a claimant who has been found responsible for a termination. Green v. Job Site, Inc., W. C. No. 4-587-025 (July 19, 2005). The question of whether a worsened condition has caused the claimant's wage loss following termination is one of fact for determination by the ALJ. Hammack v. Falcon School District, W.C. No. 4-637-865 (October 23, 2006); affd sub nom. Hammack v. Industrial Claim Appeals Office, No. 06CA2344 (Colo. App. Dec. 6, 2007) (not selected for publication).
Because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). The Court of Appeals has noted in this context that the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).
The respondents argue that the claimant did not lose any time from work as a result of a worsened condition because at the time of worsening, the claimant was not employed. The respondents cite City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997) for the proposition that TTD benefits are to compensate for and protect against actual temporary wage loss attributable to an industrial injury. The respondents argue that because the claimant did not leave work as a result of any worsened condition, the claimant did not sustain an actual wage loss as a result of any worsened condition.
In City of Colorado Springs, the Court of Appeals determined that 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. However, the Panel has previously ruled that City of Colorado Springs does not require the claimant to establish an "actual wage loss" where, for example, the claimant was not working immediately before the worsened condition. Moss v. Denny's Restaurants, W.C. No. 4-440-517 (September 27, 2006). The Panel 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), the Panel 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). We are not persuaded to depart from the Panel's 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 his 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); Moss v. Denny's Restaurants supra. Consequently, as noted above we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
Here, the ALJ made the following pertinent findings of fact with record support. The claimant demonstrated by a preponderance of the evidence that she suffered a worsening of her left hip injury that caused a subsequent wage loss. The claimant credibly explained that her left hip condition worsened and prevented her from working since she ceased employment with the employer. The claimant worked for Access-A-Ride as a driver from May 1, 2008 through July 15, 2008, but ceased employment because of her work-related symptoms. The claimant subsequently obtained employment at Target, but ceased working after two weeks because of her persistent left hip pain. The ALJ concluded that the claimant suffered a worsening of her left hip injury since her February 19, 2008 resignation from employment that caused a subsequent wage loss. In our view, the ALJ's order is supported by substantial evidence and by the correct application of the law, and we decline to disturb it.
II.
The respondents next contend that the ALJ erred in continuing to award TTD benefits after he specifically found that Dr. Ogden released the claimant to return to regular duty on November 8, 2010 without any contravening medical opinion. In our view, a remand is necessary for the ALJ to resolve factual disputes concerning Dr. Ogden's report.
The ALJ found that although Dr. Ogden noted on November 8, 2010 that the claimant did not require work restrictions, the claimant credibly maintained that she was unable to work because her leg length discrepancy caused spine and right knee symptoms. The ALJ thus found that the claimant had demonstrated that she had suffered a worsening of condition since her February 18, 2008 resignation from employment and was entitled to receive TTD benefits.
Section 8-42-105(3)(c), C.R.S. mandates termination of TTD benefits if the attending physician gives the employee a written release to return to regular employment. The ALJ may not disregard the attending physician's opinion that a claimant is released to return to regular employment. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). If there is conflict in the record regarding a claimant's release to return to regular employment, the ALJ must resolve the conflict. Imperial Headware, Inc. v. Industrial Claim Appeals Office of State 15 P.3d 295 (Colo. App. 2000).
Although the determination of whether a claimant has been released to return to work by the attending physician is a question of fact, we do not read the ALJ's order as having resolved an internal conflict in the November 8, 2010 report from Dr. Ogden. Rather, the ALJ simply noted that Dr. Ogden stated the claimant did not require work restrictions and based the determination of entitlement to TTD benefits on the claimant's testimony.
We note the following from Dr. Ogden's November 8 2010 report. Dr. Ogden, after stating that no work restrictions were indicated, immediately noted that the claimant was retired and not currently working. The doctor then stated "activity as tolerated is fine." It is not clear to us if the ALJ found that Dr. Ogden's report constituted a written release to return to regular employment which under § 8-42-105(3)(c) would mandate a termination of TTD benefits. Compare Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo. App. 1999) (opinion of the attending physician carries conclusive effect, but the ALJ must resolve conflicting evidence regarding whether a physician is an attending physician for purposes of § 8-42-105(3)(c)).
Therefore, it is necessary to remand the matter to the ALJ for the entry of additional findings on that issue. The ALJ shall resolve any factual disputes concerning Dr. Ogden's report and make specific findings as to whether it constitutes written release to return to regular employment which would under § 8-42-105(3)(c) mandate a termination of TTD benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated March 23, 2011 is affirmed as to the determination that the claimant suffered a worsening of condition that caused a subsequent wage loss. However, the denial of the respondents' request to terminate TTD benefits is set aside and the matter is remanded to the ALJ to determine whether the claimant had been medically released to return to regular employment, and for entry of a new order consistent with the opinions expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
CERTIFICATE OF MAILING
MIADA GARCIA, DENVER, CO, (Claimant).
FRONTIER AIRLINES, Attn: JEAN WILLIAMS, C/O: REPUBLIC AIRWAYS, INDIANAPOLIS, IN, (Employer).
INSURANCE CO OF THE STATE OF PENNSYLVANIA, Attn: MARK LEWIS, C/O: CHARTIS, SHAWNEE MISSION, KS, (Insurer).
LAW OFFICES OF DIANNE SAWAYA, LLC, Attn: BRIANNE N. FALGIEN, ESQ., DENVER, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: MATTHEW C. HAILEY, ESQ., DENVER, CO, (For Respondents).