W.C. No. 4-154-631Industrial Claim Appeals Office.
October 7, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which awarded the claimant temporary total disability benefits commencing February 4, 1994, and continuing. We affirm.
This matter was before us previously. Our Order of Remand dated April 12, 1996, contains a detailed statement of the facts. We will not repeat that statement here.
On remand, the ALJ entered a new order dated June 5, 1996. In that order, the ALJ found that, on February 4, 1994, the authorized treating physician opined that the claimant was suffering from shoulder tendonitis as a result of a home therapy program prescribed to treat the claimant’s industrial back injury. Thus, the ALJ determined that, as of February 4, the claimant was not at maximum medical improvement (MMI) for the shoulder condition, although he remained at MMI for the back injury. Under these circumstances, the ALJ concluded that the claimant was entitled to reinstatement of temporary total disability benefits commencing February 4 because the physical restrictions imposed by the authorized treating physician “as a result of the entire injury prevent the” claimant from returning to regular employment.
On review, the respondent contends that the ALJ, erred in awarding additional temporary total disability benefits commencing February 4. The respondent argues that the claimant did not sustain “increased physical restriction or decreased access to the job market” as a result of the shoulder condition. Therefore, the respondent contends that the claimant has not sustained any increased loss of earning capacity as a result of the shoulder condition, and should not be entitled to additional temporary disability benefits. We reject the respondent’s position.
As the claimant argues, the respondent’s position is premised on the theory that workers’ compensation injuries are divisible, and that a reopening based on a worsened condition does not justify the reinstatement of temporary disability benefits unless new or additional restrictions are attributable to the worsened condition. We believe that this is an incorrect view of the law.
Section 8-43-303(1), C.R.S. (1996 Cum. Supp.), provides that when an award is reopened, “compensation and medical benefits previously ordered may be ended, diminished, maintained, or increased.” The reopening statute “contains no restriction as to finding change of time of disability, or extent of disability, from that originally found, but only the limitation that it shall not affect `monies already paid.'” Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011 (1947). Consequently, it has been held that reopening is permissible to award additional temporary disability benefits and medical benefits, even if there has not been any increase in the claimant’s permanent industrial disability. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988).
Further, the purpose of temporary disability benefits is to compensate a claimant’s actual loss of wages during the “healing period” prior to MMI when the claimant is temporarily unable to work due to the injury. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995); J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). We are aware of no authority, and the respondent cites none, which supports the proposition that the effects of industrial injuries are divisible so that a claimant may be at MMI for one aspect of an injury, but not another. To the contrary, § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.), defines MMI as the point in time when any physical or mental impairment has become stable and “when no further treatment is reasonably expected to improve the condition.” This provision provides no basis for holding that MMI may be divided between various aspects or effects of an industrial injury.
It follows that there is no basis for setting aside the ALJ’s award of temporary disability benefits. It is true that the claimant’s back condition was the cause of his inability to return to work, and that the back became stable in 1993. However, the claimant’s condition subsequently destabilized with the development of the shoulder problem and further treatment was reasonably expected to improve his condition. Therefore, the claimant was no longer at MMI for the overall effects of the industrial injury. Thus, the claimant’s wage loss was agai temporary pending the attainment of MMI, and there was no basis for terminating temporary disability benefits under any of the provisions of § 8-42-105(3)(a)-(d), C.R.S. (1996 Cum. Supp.).
Moreover, any other conclusion would produce an anomalous result. If the claimant had developed the shoulder proble prior to reaching stabilization of the back condition, the respondent could not seriously have contended that it was entitled to terminate temporary disability benefits, under §8-42-105(3)(a), when the back stabilized. In that scenario, the claimant would not have reached MMI for the industrial injury, he would not have returned to regular or modified employment, and he would not have been offered employment within his restrictions. There is no justifiable reason for holding that the claimant would be entitled to temporary disability benefits in that situation, but not under the circumstances present here.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 5, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed October 7, 1996 to the following parties:
Harold E. Ballinger, 101 Davie Drive, Security, CO 80917
City of Colorado Springs, P.O. Box 1575-1370, Colorado Springs, CO 80901-1370
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
Chad J. Hessel, Esq., 101 North Cascade Ave., Ste. 400, Colorado Springs, CO 80903 (For the Respondent)
By: _______________________