W.C. No. 3-103-338Industrial Claim Appeals Office.
August 12, 1998
FINAL ORDER
The claimant seeks review of a final of Administrative Law Judge Martinez (ALJ), which denied his claim for temporary total disability benefits from September 1, 1995 to October 7, 1997. The claimant contends that his condition worsened as of September 1, 1995, and this worsening entitled him to temporary total disability benefits until he underwent surgery on October 7, 1997. We affirm.
Claimant sustained a compensable back injury on January 10, 1992, and he was treated by Dr. Cain. An MRI was performed in February 1994, and it revealed an L5-S1 disk herniation plus mild posterior central disk bulges at L3-4 and L4-5.
In May 1994 a surgeon, Dr. Wyman, advised the claimant that surgery would probably not be successful, and the claimant declined surgery. Thus, the claimant was placed at maximum medical improvement (MMI) on June 20, 1994, and rated by Dr. Fleming. Dr. Fleming assigned a twenty-nine percent whole person medical impairment rating.
Subsequently, the claimant sought supplemental security income (SSI) benefits from the Social Security Administration. As a result, the claimant was examined by Dr. Fisher in February 1996, and Dr. Hall in April 1996. Neither physician provided treatment, both opined that the claimant was disabled, and both believed the claimant might improve with surgery. Ultimately, the claimant was awarded SSI benefits commencing September 1, 1995.
The claimant received some medical treatment after reaching MMI. In August 1995, Dr. Wyman examined the claimant and reported that his back pain was “pretty much” under control. However, Dr. Wyman prescribed physical therapy for purposes of developing a “home program for back maintenance.” Commencing in August 1996, Dr. Cain began prescribing medications for depression and back pain.
In August 1997, the claimant was again examined by Dr. Wyman for back pain, lower extremity pain and incontinence. After another MRI the claimant agreed to undergo back surgery, and the surgery was performed on October 7, 1997.
For his part, the claimant testified that his back symptoms began to worsen approximately six months prior to the October 1997 back surgery. (Tr. p. 5). The claimant also testified that he had been unable to work since reaching MMI in 1994, and that no physician ever released him to return to work. (Tr. p. 15). In fact, the claimant had not worked since he held a job as a security guard in 1993. (Tr. pp. 6-7).
The respondents voluntarily reinstated the claimant’s temporary total disability benefits on October 7, 1997. However, the claimant sought temporary total disability benefits from September 1, 1995 (the date of SSI eligibility) through October 6, 1997.
The ALJ denied the claim for temporary disability benefits. The ALJ found the claimant remained at MMI from June 20, 1994 to October 7, 1997, and that the evidence was insufficient to establish a worsened condition before October 7. In support, the ALJ noted that neither Dr. Cain nor Dr. Wyman “rescinded” the June 1994 date of MMI, and the ALJ was unpersuaded that the opinions of Dr. Fisher and Dr. Hall proved a worsened condition. The ALJ also discredited the claimant’s testimony that his condition worsened approximately six months before the injury. Finally, the ALJ stated that the claimant’s receipt of “maintenance” medical care prior to October 7 did not require reinstatement of temporary total disability benefits.
The ALJ also held that the claimant was not entitled to temporary total disability benefits regardless of whether his condition worsened prior to October 7. Relying on the Court of Appeals decision in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the ALJ found there was no evidence that the claimant’s alleged worsening of condition caused “new work restrictions” after June 1994, or caused the claimant to sustain an additional wage loss commencing September 1, 1995. In support, the ALJ relied on the claimant’s own testimony that he had not been released to work since reaching MMI in June 1994, and had not worked since that date.
I.
On review, the claimant contends the evidence proves his condition worsened prior to October 7, 1997, and therefore, the ALJ should have reopened the case to award additional temporary disability benefits prior to October 7. As a corollary, the claimant asserts the ALJ placed undue reliance on his finding that the claimant remained at MMI between June 1994 and October 7, 1997. We are not persuaded.
Under § 8-43-303(1), C.R.S. 1997, an ALJ may reopen a case to award additional benefits if there has been a “change in condition causally connected to the industrial injury.” Chavez v. Industrial Commission, 714 P.2d 1328 (Colo.App. 1985). If the ALJ finds a worsened condition, he may award additional temporary disability benefits as the evidence warrants. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988).
The question of whether to reopen based on worsened condition is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). Consequently, we may not interfere with the ALJ’s decision unless an abuse is shown, as where the order is unsupported by the evidence or contrary to law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). The ALJ’s findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The claimant’s assertions notwithstanding, the ALJ did not place undue emphasis on the finding of MMI. The right to temporary disability benefits ends when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. 1997. When the claimant attains MMI, the claimant’s physical and mental impairment can be determined, and any subsequent loss of wages or earning capacity is permanent. See § 8-40-201(11.5), C.R.S. 1997; Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). Conversely, injury-related loss of earnings prior to MMI is “temporary” wage loss which may be compensated under § 8-42-105. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Thus, the question of whether the claimant remained at MMI between September 1, 1995 and October 7, 1997 was critical to the ALJ’s order.
Moreover, the attainment of MMI is not always inconsistent with the need for ongoing medical treatment. To the contrary, it is only medical treatment “reasonably expected to improve” the claimant’s condition which is inconsistent with MMI. Section 8-40-201(11.5). Medical treatment which is necessary to maintain the claimant’s condition or treat recurring symptoms may be provided without contradicting a finding of MMI. Section 8-40-201(11.5); Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Here, there is substantial evidence that the claimant remained at MMI before October 7, 1997, and was not entitled to additional temporary benefits before that date. The ALJ found that, although the claimant continued to experience symptoms and disability after he reached MMI in June 1994, this was to be expected considering the nature of the condition and the decision not to undertake surgery. The mere fact that the claimant occasionally received treatment for symptoms of his back condition did not require the ALJ to conclude that the overall condition had worsened. To the contrary, the ALJ could logically infer that this treatment was necessary to alleviate the claimant’s symptoms and maintain his condition, including his mental condition. Moreover, even the claimant testified that his symptoms did not begin to worsen until approximately six months prior to the October 1997 surgery.
Under these circumstances, the ALJ could logically find that the claimant failed to prove any worsening of condition until he agreed to undergo the remedial surgery in October 1997. The ALJ was certainly not required to conclude that the claimant’s condition worsened at the time he was awarded SSI in September 1995. The mere fact that other findings and conclusions were possible affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1998).
II.
The claimant also argues that the ALJ erroneously relied o City of Colorado Springs v. Industrial Claim Appeals Office, supra, for the proposition that the claimant failed to prove entitlement to additional temporary disability benefits. The claimant reasons that because he was never released to return to work after reaching MMI in June 1994, he has demonstrated an entitlement to additional temporary disability benefits. We are not persuaded.
In City of Colorado Springs, the court stated that the worsening of “an original condition after a claimant reaches MMI does not itself entitle a claimant to renewed TTD benefits, unless the worsened condition causes an additional temporary loss of wages.” There, the court held that the claimant failed to establish the requisite causal relationship because there was “no credible evidence that [the “second injury”] resulted in any increased physical restrictions” beyond those existing at the time of MMI.
We perceive no meaningful distinction between the facts present in City of Colorado Springs v. Industrial Claim Appeals Office and the facts present here. It is true that, in this case, the claimant testified he was totally unable to work after reaching MMI, whereas the claimant in City of Colorado Springs was released to return to work with restrictions. However, according to the City of Colorado Springs court, the deciding factor was that the claimant’s “worsened condition” or “new injury” caused “no greater impact on claimant’s temporary work capability than he had originally sustained as a result of the injury to his back.” (Emphasis in the original).
Here, even if the claimant’s condition worsened prior to October 7, 1997, the ALJ was not required to find that this worsening resulted in any “impact” on the claimant’s capacity to earn wages. To the contrary, the claimant’s own testimony establishes that he was unable to work after reaching MMI in June 1994, and that no new restrictions were imposed prior to October 7, 1997. Thus, we agree with the ALJ that City of Colorado Springs is directly on point, and the claimant is not entitled to temporary total disability benefits during the disputed period because he failed to prove that the worsened condition caused additional temporary wage loss.
As the claimant recognizes, we are bound by the City of Colorado Springs case. C.A.R. 35(f). Therefore, we may not address his argument that the case was wrongfully decided.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 12, 1998 to the following parties:
Marvin Sanchez, 938 Sligo, Cortez, CO 81321
Herschel R. Oliver, 20911 Hwy 666, Yellow Jacket, CO 81335
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Gail C. Harriss, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
By: _______________________