IN THE MATTER OF THE CLAIM OF CARLA LARA, Claimant, v. ACCENT INTERMEDIARY SERVICES, LLC, Employer, and COMMERCE INDUSTRY INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-768-911.Industrial Claim Appeals Office.
June 29, 2011.

FINAL ORDER
The respondents seek review of that portion of a Supplemental Order of Administrative Law Judge Felter (ALJ) dated April 7, 2011 that awarded temporary total disability benefits (TTD). We affirm.

The claimant suffered an admitted industrial injury on August 8, 2008. The claimant was placed at maximum medical improvement (MMI) by an authorized treating physician (ATP) and assigned permanent physical restrictions of no lifting over 20 pounds, no pushing/pulling over 20 pounds, no prolonged standing and/or walking longer than tolerated, and no squatting and/or kneeling. On May 12, 2009, the respondents filed a Final Admission of Liability (FAL) consistent with the ATP’s opinion on permanent impairment. The FAL became final by operation of law. On February 1, 2010, the ATP examined the claimant and opined that she was not at MMI. The respondents voluntarily reopened the claim. On July 15, 2010, the ATP assigned work restrictions of no lifting more than 15 pounds, bending and twisting on an occasional basis, and no pushing or pulling more than 25 pounds.

The ALJ found that these increased work restrictions supported a worsened physical condition. The ALJ further found that the work restrictions after reopening caused a greater impact on the claimant’s work capacity than the impact that had existed at the time she was declared to be at MMI. The ALJ awarded TTD benefits from February 1, 2010, the date the ATP opined that the claimant was no longer at MMI.

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However, the ALJ denied the claimant penalties sought for the respondents’ nonpayment of additional TTD benefits.

The respondents appeal, contending that the ALJ erred in awarding TTD benefits because no actual wage loss had occurred based upon a worsening of a previously determined permanent impairment. The respondents principally rely upon City of Colorado Springs Disposal v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo. App. 1997). However, in our view the respondents’ reliance on City of Colorado Springs is misplaced.

In City of Colorado Springs, the claimant sustained an admitted industrial injury to his back and was placed at MMI. As part of claimant’s ongoing therapy, his treating physician prescribed the use of an exercise machine. Some four months after reaching MMI, the claimant’s use of this machine caused him to develop tendinitis in his shoulders. Nevertheless, the ALJ found that this latter condition did not result in any further physical restrictions and that there was no credible evidence that this condition caused any greater temporary wage loss than claimant sustained as a result of his initial back injury alone.

We read City of Colorado Springs as standing for the proposition that a worsening of condition after MMI may entitle the claimant to additional temporary disability benefits if the worsened condition caused a “greater impact” on the claimant’s temporary work capacity than existed at the time of MMI. Root v. Great American Insurance Company, W.C. No. 4-534-254 (April 15, 2009). The Panel has previously ruled that City of Colorado Springs does not require the claimant to establish an “actual wage loss” where, for example, the claimant was not working immediately before the worsened condition. Moss v. Denny’s Restaurants, W.C. No. 4-440-517 (September 27, 2006). The Panel stated in Lively v. Digital Equipment Corporation, W.C. No. 4-330-619 (June 14, 2002) that: “[a]s we read City of Colorado Springs, in order to establish entitlement to additional temporary disability benefits the claimant must show the worsened condition resulted in increased physical restrictions (over those which existed on the original date of MMI), and that the increased restrictions caused a `greater impact’ on the claimant’s temporary `work capability’ than existed at the time of MMI.”

Contrary to the respondent’s position in Kreimeyer v. Concrete Pumping Inc., W.C. No. 4-303-116 (March 22, 2001), the Panel concluded that the critical issue in cases controlled by City of Colorado Springs is not whether the worsened condition actually resulted in additional temporary wage loss, but whether the worsened condition has had a greater impact on the claimant’s temporary work “capacity.” See also El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo. App. 1993); Ridley v. K-Mart Corp.,

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W.C. No. 4-263-123(May 27, 2003). We are not persuaded to depart from the Panel’s prior conclusions. It follows that it is the impact of the claimant’s work “capacity,” not proof of an actual wage loss, which determines whether the claimant has established entitlement to TTD benefits in connection with a worsening of condition after MMI.

The question of whether the claimant proved increased disability, as measured by a reduction in her capacity to earn wages, was a question of fact for determination by the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and 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 ALJ found that, although the claimant’s open labor market options were limited before initial placement of MMI and excluded work from her employer, her options became even more limited after her worsening and the reopening. The ALJ’s findings of fact do not appear to be contested. In any event, in our view, the ALJ’s order is supported by substantial evidence and by the correct application of the law, and we decline to disturb it.

IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated April 7, 2011 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Dona Rhodes

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CARLA LARA, RAYTOWN, MO, (Claimant).

ACCENT INTERMEDIARY SERVICES, LLC, Attn: LORIE BIRK, MESA, AZ, (Employer).

COMMERCE INDUSTRY INSURANCE COMPANY, Attn: MARK LEWIS, C/O: CHARTIS, SHAWNEE MISSION, KS, (Insurer).

SAWAYA, ROSE, KAPLAN McCLURE, PC, Attn: MATTHEW C. O’BRIEN, ESQ., DENVER, CO, (For Claimant).

TREECE, ALFREY, MUSAT, BOSWORTH, PC, Attn: CHRISTOPHER P. AHMANN, ESQ., DENVER, CO, (For Respondents).

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