Opinion
W.C. No. 4-353-524
January 7, 2003
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary disability benefits. We affirm.
In 1997, the claimant suffered a work-related injury to his left ankle. The respondent paid temporary disability benefits through March 16, 1998, when the claimant returned to a less demanding job with the employer. On May 8, 1998, the claimant was placed at maximum medical improvement (MMI) for the ankle injury. The claimant was medically released to return to his regular employment on June 19, 1998. However, the claimant continued the modified duty assignment until September 9, 1998, when he separated from the employment due to an unrelated illness. The claimant subsequently requested an award of temporary total disability benefits.
The ALJ found that after leaving the employment, medical restrictions were imposed which precluded the claimant from performing his pre-injury job. (Finding of Fact 5). The ALJ also determined the industrial accident resulted in a psychological injury which caused the claimant to suffer chronic low mood, sleep disturbances, social withdrawal, and low energy level. The ALJ determined the claimant's mental condition impaired the claimant's ability to look for work and locate other employment. Therefore, the ALJ determined the claimant sustained his burden to prove that the industrial injury contributed to his temporary wage loss between September 9, 1998 and March 8, 2000, when the claimant was placed at MMI for the psychological injury.
Relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the respondent contends the ALJ erroneously awarded additional temporary disability benefits without requiring the claimant to prove that the psychological injury caused a greater impact on the claimant's temporary earning capacity than existed as of May 8, when the claimant was placed at MMI. The respondent also contends no authorized treating physician restricted the claimant from performing his regular employment after September 9. Therefore, the respondent argues the record is legally insufficient to support a conclusion that the claimant was "disabled" between September 9, 1998 and March 8, 2000. We perceive no error in the award.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, and that he left work as a result of the disability. Section 8-42-103(1)(b), C.R.S. 2002; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In this context, the term "disability" refers to the claimant's inability to perform his regular employment. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). If the claimant establishes his initial entitlement to temporary disability benefits, temporary disability benefits are due as long as there is a causal relationship between the wage loss and the industrial injury, and none of the circumstances described in § 8-42-105(3)(a)-(d), C.R.S. 2002, have occurred. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Section 8-42-105(3)(a), C.R.S. 2002, terminates temporary disability benefits when the claimant reaches MMI. As argued by the respondent , City of Colorado Springs v. Industrial Claim Appeals Office, supra, stands for the proposition that once the claimant has reached MMI, a subsequent worsening of condition does not trigger the automatic reinstatement of temporary disability benefits if the worsening "caused no greater impact" upon the claimant's temporary work capacity then existed at the time of MMI. However, MMI is not divisible and a single industrial accident may result in multiple injuries. See City of Colorado Springs v. Industrial Claim Appeals Office, supra (hereinafter Ballinger).
Here, the record contains evidence the claimant was placed at MMI for the physical injury on May 8, 1998. However, the ALJ found the claimant also suffered a psychological injury and that the claimant did not attain MMI for the psychological injury until March 8, 2000. Because the ALJ's findings are supported by substantial evidence and plausible inferences drawn from the record, they must be upheld on review. Section 8-43-301(8), C.R.S. 2002; MGM Supply Co. v. Industrial Claim Appeals Office, __ P.3d __(Colo.App. 01CA1200, March 14, 2002).
The ALJ's findings support the conclusion that the claimant's entitlement to temporary disability benefits did not terminate when he was placed at MMI for the physical injury. Accordingly, this claim is factually distinguishable from Ballinger. Unlike the circumstances presented here, the claimant in Ballinger requested temporary disability benefits on account of a worsening of condition after being placed at MMI for all compensable components of the original industrial injury. Here, the claimant did not reach MMI on May 8 for purposes of applying § 8-42-105(3)(a) or the principles announced in Ballinger.
Section 8-42-105(3)(c), C.R.S. 2002, provides that temporary disability benefits terminate when the attending physician releases the claimant to return to regular employment. We agree with the respondent that the attending physician's opinion concerning the claimant's ability to perform his regular employment is dispositive of the termination of temporary disability benefits. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). However, the attending physician's opinion does not preclude a subsequent award of temporary disability benefits where the claimant's condition worsens. Contrary to the respondent's contention, Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff'd. Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication) is not authority for the contrary. In Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997), the court held that there is no requirement for the claimant to present evidence by way of a medical opinion of an attending physician to establish a disability from a worsened condition. In fact, the court in Lymburn suggested that the claimant's testimony alone might be sufficient to establish a temporary "disability." We and the ALJ are bound by published decisions of the court. C.A.R. 35(f).
In this case, there is evidence that an attending physician released the claimant to regular employment in June 1998. However, the ALJ implicitly found the claimant's condition subsequently worsened to the point that the claimant was medically prohibited from heavy lifting. Further, the ALJ credited the claimant's testimony, as well as medical evidence that the claimant's psychological injury has caused the claimant to experience symptoms of depression which impaired his temporary ability to obtain employment. The ALJ's findings support his determination that the claimant was temporarily disabled between September 10, 1998 and the date he was placed at MMI for all components of the injury. Consequently, the ALJ did not err in awarding additional temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated January 3, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Kathy E. Dean
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Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ____January 7, 2003 __________________________to the following parties:
Francisco Barrientes, 2280 1st Ave., #7, Greeley, CO 80631
Michelle Raimer, Weld County, P.O. Box 758, Greeley, CO 80632
Norma Stimmler, County Technical Services, 1700 Broadway, #1512, Denver, CO 80290
Occupational Healthcare Management, P.O. Box 173682, Denver, CO 80217-3682
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: ________A. PENDROY_____________________________