Opinion
W.C. No. 4-740-062.
July 13, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated February 26, 2010, that denied and dismissed the claimant's request for temporary total disability (TTD) benefits for the period February 16, 2007 through September 15, 2009 and for TTD benefits after the date of the hearing. We affirm.
On May 10, 2006, the claimant injured his right knee when he slipped while exiting his construction trailer. The claimant underwent right knee surgery on September 16, 2009. The insurer filed a General Admission of Liability admitting for TTD benefits from September 16, 2009. The claimant sought TTD benefits from February 16, 2007 until September 16, 2009 the time the respondents admitted liability for TTD benefits. The respondents requested that TTD benefits be cut off as of the time of the hearing.
The ALJ found that the claimant had failed to prove by a preponderance of the evidence that he was entitled to receive TTD benefits from February 16, 2007 until terminated by statute. The ALJ found that the claimant had not established that his May 10, 2006 industrial injury caused a disability or that he suffered an actual wage loss. Nevertheless, based on the respondents' admission, the ALJ concluded that the claimant was entitled to receive TTD benefits for the period September 16, 2009 until the date of the hearing. However, the ALJ concluded that the claimant's business records revealed that he did not suffer a disability or actual wage loss as a result of his industrial injury and so granted the respondents' request to terminate TTD benefits effective from the date of hearing. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erred in determining that the claimant was not entitled to TTD benefits between February 16, 2007 and September 16, 2009. The claimant argues that the evidence established that he had a compensable injury that lasted more than three work shifts and the disability resulted in actual wage loss.
The claimant argues that he testified he had earned no wages since February 16, 2010 as a result of his compensable injury. The claimant argues that the respondents misdirected the ALJ by introducing bank records and receipts of expenditures. We are not persuaded that the ALJ committed reversible error.
In a workmen's compensation case, the claimant undeniably has the initial burden of proving his 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). To prove entitlement to TTD the claimant must prove the industrial injury caused a "disability." § 8-42-103(1), C.R.S.; 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 is "medical incapacity" evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of "disability" may be evidenced by showing a complete inability to work, or by physical restrictions which impair the claimant's ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App. 1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We must uphold the ALJ's determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). The ALJ has broad discretion in assessing the weight and sufficiency of the evidence to determine whether this burden has been satisfied. See Sena v. World of Sleep, 173 Colo. 348, 478 P.2d 671 (1970); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo. App. 1981); Castro v. U.S. Transfer Storage, W.C. 3-849-678 (March 8, 1989).
Here, the ALJ made the following findings of fact. On June 2, 2006, the claimant was evaluated at Castle Rock Family Medicine and was diagnosed with a sprain/strain of his right knee. Exhibit 4. The claimant did not miss any days of work and failed to follow-up with Castle Rock Family Medicine. Tr. at 26-27, 55-57. The claimant continued to work full duty without restrictions until July or August 2006. Exhibit C at 4; Tr. at 28-29. The claimant's contract was terminated for reasons unrelated to his knee injury. Following his right knee injury the claimant continued to work full duty without restrictions for Dav-Lin Construction and Buffalo Construction. The claimant subsequently and materially participated in various construction projects. The claimant moved to Texas and worked for Legendary Oaks on a project-by-project basis. The claimant earned $48,000 from Legendary Oaks after his right knee injury. In early 2007, the claimant began the development of the Marilyn's Trace duplex community. The claimant participated in the pre-construction phase of the project and oversaw the construction of the first two duplexes. After construction, the claimant developed a website and marketed the first two duplexes. Because he could not immediately sell the two duplexes, the claimant rented the units for $665.00 a month.
The ALJ also made the following additional findings of fact. The claimant's financial activities and business expense reports suggest that he was performing work activities related to the construction projects. The claimant's Amended 2007 Federal Tax return revealed that he reported business expenses of $17,906 and expenses for the business use of his home in the amount of $968. Exhibit M at 179. The claimant claimed business expenses for car and truck usage, contract labor, depreciation, legal and professional services, office expense, repairs and maintenance, taxes and licenses, travel, meals and entertainment. Exhibit M; Tr. at 62-66. He also deducted driving expenses of 15,096 miles because of the business/investment use of his vehicle. The claimant's Amended 2008 Federal Tax return is similar to his 2007 tax return. Exhibit U. He identified his profession as "non residential business construction." The claimant claimed $32,020 in business expenses and $1,243 as an expense for the business use of his home. The claimant's business expenses included car and truck usage, commissions and fees, insurance, legal and professional services, office expenses, supplies, taxes and licenses, travel, meals and entertainment, postage, a business telephone, waste management, credit card fees, tolls and parking, pest control, internet, software, tools, copies and TurboTax. The claimant claimed depreciation for his RV, Nissan Murano, laptop computer, project camera, notebook and duplex construction. Exhibit U. The ALJ concluded that the claimant's business records thus revealed that he did not suffer a disability or actual wage loss as a result of his industrial injury.
The claimant does not challenge any of the specific findings made by the ALJ with regard to the financial records. Rather the claimant contends that the records have no bearing on whether or not the claimant earned wages and that the ALJ erred in concluding that the claimant's business records revealed that he did not suffer a disability or actual wage loss as a result of his industrial injury. We disagree.
In our view, the ALJ could reasonably infer, as he did, from evidence that the claimant was able to work and fulfill work related responsibilities in the various projects he engaged in over the years. It is our opinion, the findings of fact are sufficient to permit appellate review. The ALJ has resolved conflicts in the evidence, the record supports the findings, the order is supported by the findings, and the order is supported by applicable law. Therefore, under § 8-43-301(8), C.R.S. we are precluded from disturbing the ALJ's order.
II.
The claimant next contends that the ALJ erred in determining that the claimant's financial activities and business reports precluded him from being entitled to TTD benefits. The claimant argues that the ALJ made no findings that the claimant earned wages, but rather drew inferences from financial records that the claimant was performing work activities related to construction projects. We perceive no reason to interfere with the ALJ's order.
As noted above the initial burden of proving his entitlement to TTD benefits fell on the claimant. Upchurch v. Industrial Commission, 703 P.2d 628. It was not the burden of the respondents to demonstrate that he earned no wages. The claimant relies on his own testimony that he earned no wages. However, the ALJ did not credit that testimony.
In his brief, the claimant explains that he was self-employed and that certain business expenses continued even though he could not earn wages due to his injuries. The ALJ's extensive review of the claimant's financial records led him to conclude that the claimant did not suffer a disability or actual wage loss as a result of the industrial injury. In our view, this is a reasonable inference drawn from the evidence that the claimant was performing work activities related to his self-employed involvement with construction projects.
The ALJ was not compelled to conclude that the claimant's reported income was a mere return on investment. In our view, the ALJ was free to consider income earned by the claimant as suggesting employment because the business profits were attributable at least in part to the claimant's efforts. See Garcia v. John's Quality Concrete, W.C. 3-728-699 (September 20, 1988) (the Panel affirmed the ALJ's rejection of the notion that the earnings were a mere "return on investment," and that the claimant was permanently and totally disabled). Even though there might need to be an adjustment made in determining average weekly wage depending on the claimant's business expenses it does not follow that the ALJ was compelled to view the business activities of the claimant as merely some type of passive investment. See Elliott v. El Paso County 860 P.2d 1363 (Colo. 1993) (reasonable depreciation should be deducted from gross earnings in determining self-employed claimant's post-injury average weekly wage when calculating temporary partial disability benefits).
III.
The claimant next contends that the ALJ erred in terminating the claimant's temporary total disability benefits as of the date of the hearing when there was no finding of one of the four requirements necessary to terminate temporary disability benefits listed in § 8-42-105(3) C.R.S. We are not persuaded by this argument, because the ALJ determined that the claimant had not suffered a disability or actual wage loss as a result of his industrial injury. Therefore, the claimant was not initially entitled to TTD benefits.
Section 8-42-105(3) addresses the termination of TTD benefits rather than the situation here where the claimant is attempting to establish his initial entitlement to benefits. Candelaria v. Patterson UTI Drilling, Inc., W.C. No. 4-760-465 (July 20, 2009); Meagher v. City and County of Denver, W. C. No. 4-274-962 (May 21, 1998). Therefore, in our view, it was unnecessary for the ALJ to determine whether the claimant's entitlement to temporary disability benefits could be terminated under § 8-42-105(3) because the ALJ had found that there was no initial entitlement to TTD benefits and no actual loss of earnings as a result of the industrial injury.
At the hearing the respondents argued that the admission for TTD benefits was unwarranted as the claimant was still working. The ALJ identified the issue of whether the respondents were entitled to recover an overpayment of TTD benefits. However, the ALJ held that the respondents were responsible for TTD benefits from September 16, 2009, the date of their admission, until the date of the hearing. The ALJ granted the respondents relief from their admission only as of the date of the hearing.
In our opinion, the ALJ's determination that the claimant's business records revealed that he did not suffer a disability or actual wage loss as a result of his industrial injury is supported by substantial evidence in the record. Therefore, there was no need to address the requirements for termination of TTD benefits under § 8-42-105(3). Consequently, we perceive no reason to interfere with the ALJ's determination that the claimant failed to carry his burden of proof of entitlement to TTD benefits. We perceive no error in the ALJ's dismissal of the claim for TTD benefits from the time of the hearing and ongoing.
IT IS THEREFORE ORDERED that the ALJ's order dated February 26, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
DAVID M MATUS, CALDWELL, TX, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer)
ELEY, GALLOWAY, TRIGG, LLC, Attn: ROBERT N TRIGG, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER, SIMONS SMITH STERN, LLC, Attn: THOMAS M. STERN, ESQ., DENVER, CO, (For Respondents).