Opinion
W.C. No. 4-533-723.
May 4, 2006.
FINAL ORDER
The claimant seeks review of an order dated December 5, 2005 of Administrative Law Judge Coughlin (ALJ) that determined the claimant had failed to meet his burden of proof on the issue of temporary total disability benefits (TTD). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered a work-related back injury on January 10, 2001. The authorized treating physician (ATP) placed the claimant at maximum medical improvement (MMI) on January 14, 2002 and released the claimant to return to work with permanent restrictions. The claimant's job mainly involved customer service, sales and purchasing for the machine shop. The employment did require driving but the claimant was able to make periodic stops to tend to his personal needs such as stretching his legs and getting food or drink. The claimant felt he was essentially able to fully perform his job at the time he was released.
The claimant went to work for a different employer in September 2002, doing the same type of work. In September 2003 the claimant learned that he had contracted the West Nile Virus. He was often bedridden and physically unable to work. On November 5, 2004, the claimant returned to the ATP who found the claimant was no longer at MMI and released the claimant to return with restrictions. The claimant acknowledged that his usual line of work would not require him to regularly engage in activities that would exceed his medical restrictions with the one arguable exception of restrictions in sitting The claimant was restricted to sitting for twenty minutes per hour.
Based on these findings the ALJ determined that the claimant's sitting restriction did not prevent him from performing his usual work between March 5, 2004 and December 7, 2004. Findings of Fact, Conclusions of Law and Order at 4, ¶ 31. The ALJ determined that the claimant had failed to meet his burden of proof and had not demonstrated that his wage loss was caused by a work-related disability that rendered him unable to perform his usual work. The ALJ found that the demands of the claimant's job required him to drive between four and six hours each day. However, the ALJ also found that the claimant did not have a set or rigid schedule and was allowed to make rest stops as needed. Findings of Fact, Conclusions of Law and Order at 3, ¶ 23. The ALJ also found that the claimant does not drive four hours at a time, instead, he periodically stops to meet customers and his work schedule is historically flexible. Findings of Fact, Conclusions of Law and Order at 4 ¶ 29.
On review the claimant contends that the ALJ erred in her determination that the claimant's sitting restriction of twenty minutes per hour did not impair his ability to perform his past, regular job duties. We disagree with the claimant's argument.
An award of TTD benefits is mandated by the Act if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; (3) the temporary disability is total and lasts for more than three regular working days' duration. Section 8-42-103(1)(a), C.R.S. 2005; § 8-42-105(1), C.R.S. 2005; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability" as it is used in workers' compensation connotes two distinct 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 (Colo. 1999); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999). Disability may be evidenced by the complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
In this case the ALJ found that the claimant failed to establish entitlement to TTD because none of the restrictions imposed by the treating physician impaired the claimant's ability to perform his pre-injury employment. It follows that his wage loss was not caused by any disability associated with the industrial injury.
The claimant's reliance on Ashmore v. Nu Horizon Window Systems, Inc., W.C. No. 4-593-027 (August 25, 2004), is misplaced. In that case the claimant proved that the effects of the industrial injury caused "disability." The order specifically states that the claimant was restricted from lifting more than two pounds and, consequently, "the claimant was prohibited from performing all of his regular duties as a welder." Thus, when the employer reduced the number of overtime hours for all employees, the claimant's consequent wage loss remained causally related to the industrial injury because he was at a competitive disadvantage when seeking alternative employment. Thus, Ashmore v. Nu Horizon Window Systems, Inc., supra, is distinguishable and, in fact, the case supports the result which the ALJ reached in this case.
In McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995), the claimant sustained an eye injury. After a brief period of disability the treating physician released the claimant to return to her regular employment, but restricted her from night driving. Despite the fact that the claimant worked at night and needed to drive to work, the court interpreted § 8-42-105(3)(c) as terminating the claimant's TTD benefits because under the "treating physician's release she was able to perform her regular employment." McKinley, 903 P.2d at 1241 (emphasis added). The court emphasized that because the claimant's regular duties of employment did not involve night driving, the restriction on night driving did not negate the applicability of subsection (3)(c). Thus, the statutory focus is on a release to perform the duties of the individual claimant's regular employment, not the ability to perform all employment.
Here, the claimant argues that the ALJ's findings are internally inconsistent. Because the ALJ found that on average the claimant had to drive up to four hours per day, the claimant argues that if he complied with his sitting restrictions it would take him twelve hours to drive for four hours. We disagree that the findings that the claimant had restrictions and yet drove up to four hours per day are inconsistent. The ALJ recognized that the claimant's driving was sporadic. We understand the ALJ to have found that the time the claimant was involved in customer service and sales duties frequently required driving that took him out of the office up to four hours per day. However, the ALJ also found that the claimant did not historically drive "for hours at a time." Rather, the flexibility in the claimant's schedule permitted him to "stop as needed," and, as we read the ALJ's order, accommodate his restrictions. Findings of Fact, Conclusions of Law and Order at 2, ¶ 17 at 4, ¶ 29.
The claimant essentially argues that the ALJ's finding that the claimant's sitting restriction did not impair his ability to do his regular job is unsupported by substantial evidence. We disagree. The claimant testified that his regular work required between four and six hours of driving per day. Tr. at 31, 22. The claimant testified that he set his own schedule and was able to make stops, as he saw fit, while driving. Tr. at 33,39. The claimant's self-evaluation of his ability to perform his regular job is not necessarily controlling. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). The ALJ could reasonably infer from the record that the claimant remained capable of performing his regular work and was therefore not temporarily disabled during the relevant period of time.
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. 2005; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). In our opinion the record does support a finding that the claimant failed to prove entitlement to TTD from March 5, 2004 to December 7, 2004. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). We conclude that the ALJ did not err in denying the claim for additional TTD. We have considered the claimant's remaining arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated December 5, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Bruce Delagerheim, Golden, CO, Innovative Machining, Inc., Wheat Ridge, CO, Kim Swanson, CNA Insurance Company, Denver, CO, Mark D. Elliott, Esq., Arvada, CO, (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).