W.C. No. 4-548-535Industrial Claim Appeals Office.
February 24, 2004
ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied temporary disability benefits. We set aside the order and remand for a new order.
The claimant suffered bilateral knee injuries arising out of his employment. As a result of the left knee injury in February 2002, the claimant was temporarily restricted from pushing/pulling/lifting/carrying over 5 pounds, walking/standing more than one hour per day, and was limited to seated duty only. The respondent paid temporary partial disability benefits from February 13 through May 11, 2002, and temporary total disability benefits from May 12, 2002 to March 7, 2003, during which time the claimant underwent a total knee replacement. On March 7, 2003, the claimant was placed at maximum medical improvement (MMI) for the left knee injury and permanently restricted from lifting more than 10 pounds. Apparently, the employer did not accommodate the claimant’s permanent restrictions.
On May 2, 2002, the claimant sustained an occupational disease to his low back which is the subject of this claim. No separate medical restrictions were imposed by the treating physicians for the low back condition.
The claimant sought an award of temporary total disability benefits commencing March 8, 2003, in this claim. The ALJ found the claimant’s inability to perform his pre-injury employment was caused by the permanent medical restrictions imposed for the left knee injury and not the back condition. Therefore, the ALJ determined the claimant failed to prove entitlement to temporary disability benefits in this claim.
On appeal, the claimant points out that an injury does not have to be the sole cause of the temporary disability to establish entitlement to temporary disability benefits. Further, the claimant contends that the left knee injury precluded him from performing his regular employment, but the occupational disease is disabling from all other employment. Therefore, the claimant argues the ALJ erred in denying the claim for temporary disability benefits in this claim. We conclude the ALJ’s finding are insufficient to permit review.
To establish entitlement to temporary disability benefits, the claimant must prove that the industrial injury has caused a “disability,” and that he has suffered a wage loss which, “to some degree,” is the result of the industrial disability. Section 8-42-103(1), C.R.S. 2003; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). The term “disability,” as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. As argued by the claimant, there is no statutory requirement that the claimant present evidence of a medical opinion of an attending physician to establish his physical disability. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Rather, the claimant’s testimony alone could be sufficient to establish a temporary “disability.” Lymburn v. Symbios Logic supra.
The second element is loss of wage earning capacity. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of “disability” may be evidenced by a complete inability to work, or physical restrictions which preclude the claimant from securing employment. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Chavez v. Manpower, W.C. No. 4-420-518 (May 11, 2000); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
When the claimant reaches MMI a disability is considered permanent and temporary disability benefits terminate in accordance with § 8-42-105(3)(a), C.R.S. 2003. An exception exists when the claimant suffers a worsening of condition which causes an additional temporary loss of wages. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997) (Ballinger).
Ballinger involved a claimant who suffered a compensable back injury. The back injury precluded the claimant from performing his regular employment, and therefore, the claimant was awarded temporary total disability benefits. Four months after reaching MMI, the claimant suffered a shoulder injury while receiving treatment for the back injury. No further medical restrictions were imposed as a result of the shoulder injury. Consequently, the Ballinger court concluded that the claimant failed to prove an entitlement to further temporary disability benefits.
Here, the ALJ found, and the claimant does not dispute, that the effects of the left knee injury permanently preclude him from performing his regular employment. Thus, the pertinent issue was not whether the occupational disease in his back precluded the claimant from performing his regular employment. Indeed, the claimant was not performing his regular employment when he experienced the onset of disability from the occupational disease. Instead, the issue was whether the low back condition caused a greater disability than existed when the claimant reached MMI for the left knee injury. Put another way, the claimant was medically restricted from lifting more than 10 pounds as a result of the left knee injury, but the claimant was not permanently precluded from all employment. Thus, to the extent the low back condition physically disabled the claimant from other employment which did not require lifting more than 10 pounds, the claimant is entitled to additional temporary disability benefits. The ALJ’s order does not resolve the pertinent issue. Therefore, the matter must be remanded for additional findings.
On remand, the ALJ shall determine whether the claimant proved the low back occupational disease caused an additional loss of wages, and based on that determination shall enter a new order on the claimant’s entitlement to temporary disability benefits. Our remand does not authorize a new hearing and the ALJ’s order shall be based on the existing record.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 2003, is set aside and the matter is remanded to the ALJ for additional findings and a new order as directed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
Copies of this order were mailed to the parties at the addresses shown below on February 24, 2004 by A. Hurtado.
William Barnes, 6643 S. Sycamore St., Littleton, CO 80120
Michael McGee, Anheuser-Busch Sales Co. of Denver, 1455 E. 62nd Ave., Denver, CO 80216
Leslie Cavanaugh, LWP Claims Administrators Corp., 575 Union Blvd., #310, Lakewood, CO 80228
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204 (For Claimant)
Patricia Jean Clisham, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondents)