Opinion
W.C. No. 4-640-916.
July 21, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated December 30, 2010 that denied a request for temporary total disability (TTD) benefits. We affirm.
The claimant suffered an industrial injury on August 30, 2004. Dr. McLaughlin eventually placed the claimant at maximum medical improvement (MMI) on February 20, 2007 with lifting restrictions of no more than 20 pounds, no repetitive neck bending, and no repetitive over-shoulder work. The claimant continued to treat with Dr. Slater for post-MMI maintenance care. In 2009 Dr. Slater recommended a repeat cervical MRI and Dr. McLaughlin concurred with the recommendation. Dr. McLaughlin did not provide an opinion regarding any changes to the claimant's permanent work restrictions. After the MRI was performed, Dr. Slater recommended an EMG study and physical therapy.
The ALJ credited the testimony of the claimant and Dr. Slater and found that the recommended additional treatment was reasonable and necessary medical treatment related to the claimant's industrial injury The ALJ noted that while some of the recommended treatment could be considered maintenance treatment under the original Final Admission of Liability (FAL), the treatment had been denied by the respondents and the claimant's subjective complaints had continued to increase as documented by the medical reports. Based upon the claimant's subjective complaints and the testimony of Dr. Slater regarding further medical treatment, the ALJ determined that the claimant's condition had worsened to the point that she was no longer at MMI. Therefore, the ALJ determined that the claimant's case should be reopened.
On appeal, the claimant contends that the ALJ erred in ruling that she was not entitled to TTD benefits for the period of September 29, 2009, when she saw Dr. Slater, and continuing. The claimant directs our attention to the ALJ's findings that she had sustained a worsening of condition, that permanent restrictions had been assigned and the ALJ ordered her case to be reopened. Given these determinations by the ALJ, the claimant contends, the ALJ erred in failing to award her TTD benefits. We disagree.
Pursuant to § 8-42-105(3)(a), C.R.S., TTD benefits terminate when the claimant reaches MMI. The claimant undeniably has the initial burden of proving her entitlement to benefits by a preponderance of the relevant evidence. See Upchurch v. Industrial Commission, 703 P.2d 628 (Colo. App. 1985); Slattery v. King Soopers, W.C. No. 4-728-045 (August 15, 2008). A subsequent worsening of condition does not necessarily entitle the claimant to an award of temporary disability benefits even if the claimant is unable to return to the preinjury employment. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997). A claimant must prove that the worsening resulted in additional physical restrictions which, in turn caused impairment of the claimant's residual earning capacity beyond that which existed at MMI. If the claimant fails to satisfy these elements of proof, it is presumed that the impairment of the claimant's earning capacity remains permanent. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
The question of whether the claimant has sustained her burden of proof is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S.; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000). Substantial evidence is probative evidence that would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard, we must view the evidence in the light most favorable to the prevailing party and accept the ALJ's resolution of conflicts in the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The ALJ made the following pertinent findings of fact. The claimant was placed at MMI by Dr. McLaughlin in February 2007 with permanent lifting restrictions of 20 pounds. There is no credible evidence that Dr. McLaughlin or Dr. Slater had provided the claimant with work restrictions beyond the permanent work restrictions imposed at the time of MMI. Therefore, the ALJ determined that the claimant had failed to prove that she was entitled to TTD benefits after the reopening of her claim.
The claimant does not point to any specific change in permanent physical work restrictions, nor does the record indicate that there were increased medical restrictions. Rather, the claimant relies on her testimony that her activities of daily living have become more restricted and Dr. Slater's finding of decreased range of motion since the claimant was placed at MMI
Regarding these contentions, we first note that the ALJ is under no obligation to credit testimony, even if such testimony is unrebutted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993). Additionally the ALJ, while generally crediting the testimony of Dr. Slater and the claimant, is not required to credit all of their testimony. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). More importantly, we are not persuaded that the claimant's subjective complaints and Dr. Slater's range of motion findings, even if accepted, would compel the conclusion that the claimant's permanent physical work restrictions had changed and that there had been impairment of the claimant's residual earning capacity beyond that which existed at MMI. To the contrary, in our view the reports of Dr. McLaughlin and the lack of increased medical restrictions contained in the medical record constitute substantial evidence supporting the ALJ's decision. Exhibit 2 at 55, 62.
Finally, the claimant contends that City of Colorado Springs v. Industrial Claim Appeals Office was wrongly decided. We are, of course, bound by the published opinions of the Court of Appeals. C.A.R. 35 (f); Esola v. Publication Printers Corp., W.C. No. 4-671-535 (August 8, 2007); Stegman v. Sears Rosebuck Company, W. C. Nos. 4-559-482 4-483-695 (July 13, 2005). We also note that the claimant relies upon PDM Molding, Inc. v. Stanberg 898 P.2d 542, 547 (Colo. 1995). However, PDM Molding in relevant part was legislatively overruled. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002).
IT IS THEREFORE ORDERED that the ALJ's order dated December 30, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
MICHELLE WALKER, PALISADE, CO, (Claimant).
PREMIER CONCEPTS, LLC, Attn: JENNIFER CLARK, C/O: PERSONAL CONFIDENTIAL, BENTONVILLE, AR, (Employer).
THE HARTFORD, Attn: JENNIFER SHEARER, LEXINGTON, KY, (Insurer).
KILLIAN DAVIS, PC, Attn: AMY K EATON-FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant).
LAW OFFICES OF SCOTT TESSMER, Attn: SCOTT TESSMER, ESQ., ENGLEWOOD, CO, (For Respondents).