Opinion
W.C. No. 4-440-084
April 12, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for temporary total disability benefits commencing September 15, 1999. The claimant contends the evidence does not support the ALJ's finding that she was not disabled. She also argues she is entitled to temporary disability benefits regardless of the fact she retained the physical capacity to perform her regular employment. We affirm.
The claimant suffered injuries to her low back and both thumbs on March 1, 1999. At that time the claimant was employed as a "housing authority site manager." The most physically demanding aspects of this job required the claimant to move pans of food weighing approximately 5 to 6 pounds, and to lift 10 to 15 pounds consistently.
Initially, a nurse practitioner restricted the claimant to "light work," described as "lifting 20 pounds maximum with frequent lifting and/or carrying objects weighing up to 10 pounds." However, on July 8, 1999, the treating physician imposed more severe restrictions which limited the claimant to lifting a maximum of 5 pounds with repetition, and requiring five minute breaks every thirty minutes.
Despite the imposition of the new restrictions, the ALJ found the claimant continued to perform her regular duties through September 14, 1999, when she was discharged for alleged misconduct. Thereafter, the claimant underwent a functional capacities evaluation on September 27, 1999, and experienced an increase in back pain the following day. However, the claimant's restrictions were not increased.
Under these circumstances, the ALJ denied the claim for temporary total disability benefits commencing September 15, 1999. The ALJ found the claimant failed to prove she was "disabled" by her injuries because she remained "able to work her regular job duties at all times prior to her termination on September 14, 1999." The ALJ also found that, although the claimant's condition worsened following the functional capacities evaluation, the worsening did not result in the imposition of additional restrictions. Therefore, the ALJ was unpersuaded the worsening caused any disability which would entitle the claimant to temporary disability benefits.
I.
On review, the claimant contends the evidence does not support the ALJ's finding that she failed to prove disability. The claimant argues that the 5 pound lifting restriction, which was imposed by her treating physician and was continuing at the time of her discharge, establishes that she was disabled. We reject this argument.
In order to receive temporary total disability benefits, the claimant must prove the industrial injury caused disability. Section 8-42-103(1), C.R.S. 2000; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first element is "medical incapacity" evidenced by loss or restriction of bodily function. The second element is loss of wage earning capacity, as demonstrated by the claimant's inability to "resume his or her prior work." Culver v. Ace Electric, 971 P.2d 641, 649 (Colo. 1999). The impairment of "earning capacity" element of disability may be evidenced by the complete inability to work, or by restrictions which impair the claimant's ability effectively to perform the duties of his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Boyd v. Academy School District 20, W.C. No. 4-437-950 (January 31, 2001).
The claimant bears the initial burden of proof to establish that the injury caused disability. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1624, June 22, 2000). The question of whether the claimant proved disability is one of fact for determination by the ALJ. In making this determination the ALJ is not restricted to considering medical evidence, nor is he required to give any special weight to the opinions of the treating physician. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) (claimant need not produce medical evidence of restrictions to establish disability); Boyd v. Academy School District 20, supra. The opinion of the treating physician is binding only when the issue involves termination of temporary total disability benefits based on a release to return to regular employment. Lymburn v. Symbios Logic, supra.
Because the issue is one of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the testimony of the claimant and her supervisor supports the ALJ's factual finding that the claimant remained able to perform the most physical aspects of her job despite the restrictions imposed by the treating physician. Under these circumstances, the ALJ was not required to credit the restrictions imposed by the treating physician and conclude that the claimant was "disabled" from performing the regular duties of her employment. Indeed, the ALJ reasonably inferred the claimant's actual performance of the job was the best indicator of her capacity to work. Moreover, since the medical restrictions were not increased after the worsening of condition, the ALJ plausibly inferred the worsening did not result in any disability.
II.
The claimant next contends the ALJ erred in failing to determine whether her wage loss, following the September 14 separation, was "to some degree" caused by the industrial injury. The claimant argues that it is "immaterial whether a claimant was able to perform his pre-injury work, if the claimant sustains a wage loss caused, at least in part, by the industrial injury." We disagree.
The statute requires the claimant to prove that the industrial injury caused disability, and that the claimant left work as a result of the injury, in order to receive temporary total disability benefits. Section 8-42-103(1)(b), C.R.S. 2000. As noted above, a claimant does not establish disability "caused" by the injury unless he proves that the injury-related "medical incapacity" impaired her ability to perform the duties of regular employment. Culver v. Ace Electric, supra. Indeed, in PDM Molding Inc. v. Stanberg, supra, the court noted the claimant established these baseline criteria because the ALJ found the claimant was "unable to return to work and perform his usual duties because of this injury." 898 P.2d at 548.
Here, because the claimant failed to prove the baseline criteria for receiving temporary disability benefits, she has not established that her wage loss after September 14 was to any degree caused by the industrial injury. To the contrary, the claimant remained physically able to perform the same duties she performed prior to the industrial injury. Consequently, any wage loss after September 14 must be attributed to the claimant's own actions, or to general economic circumstances. Cf. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989) (awarding temporary disability benefits where the claimant was disabled from performing his regular duties, and was laid off from post-injury employment for economic reasons). This conclusion is reinforced by § 8-42-105(3)(c), C.R.S. 2000, which provides that temporary disability benefits shall cease when the attending physician "gives the employee a written release to return to regular employment." The claimant's argument to the contrary is unpersuasive because it would turn workers' compensation temporary disability benefits into a form of unemployment insurance.
IT IS THEREFORE ORDERED that the ALJ's order dated April 10, 2000, is affirmed.
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. 2000.
Copies of this decision were mailed April 12, 2001 to the following parties:
Lala Martinez, 4310 Dryden Dr., Colorado Springs, CO 80916
Lorilee Brabson, City of Colorado Springs, P. O. Box 1575-1145, Colorado Springs, CO 80901
Kathleen W. Robinson, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
By: L. Epperson