W.C. No. 4-154-631Industrial Claim Appeals Office.
April 12, 1996
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for temporary disability benefits. We set the order aside and remand for entry of a new order.
The pertinent facts in this case are basically undisputed. The claimant sustained a compensable back injury in October 1992. According to the authorized treating physician providing primary care, Dr. Brumfield, the claimant reached MMI in September 1993. Later, the respondent-employer offered the claimant reemployment within his restrictions, but the claimant declined so as not to affect his PERA benefits.
The ALJ further found that the claimant was directed to utilize an exercise machine as a form of ongoing therapy. At some point in December 1993 or January 1994, the claimant developed shoulder problems which the ALJ determined were the result of using the machine.
In 1994 the claimant came under the care of Dr. Walden. The ALJ found that Dr. Walden did not impose any new restrictions as a result of the shoulder condition. However, the record indicates that Dr. Walden prescribed a course of physical therapy to treat the shoulder. (Walden report, May 10, 1994.)
Under these circumstances, the ALJ denied the claim for temporary total and temporary partial disability benefits after the development of his shoulder problems. The ALJ concluded that, because the “shoulder injury occurred at least three months after reaching MMI concerning the back condition,” and because there were “no changes in the claimant’s physical restrictions” as a result of the shoulder condition, the claimant failed to prove an entitlement to temporary disability benefits.
On review, the claimant contends that the ALJ utilized an incorrect legal analysis in denying the claim for temporary disability benefits. The claimant argues that the question is not whether there were any “new restrictions” imposed as a result of the shoulder condition, but whether he was suffering a “temporary” wage loss as a result of the industrial injury once the shoulder symptoms appeared. The claimant argues that he was sustaining a “temporary” wage loss since the evidence establishes that he was no longer at MMI when Dr. Walden prescribed additional treatment for the shoulder. We agree with the claimant.
In order to establish entitlement to temporary disability benefits, the claimant must establish that he is sustaining an actual loss of wages because of the injury. He must also establish that the injury “caused” disability, that he left work as a result of the injury, and that the disability lasted at least three days. See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); § 8-42-103(1)(a), C.R.S. (1995 Cum. Supp.); §8-42-105(1), C.R.S. (1995 Cum. Supp.). If the claimant establishes these criteria, temporary disability benefits must continue until one of the four conditions set forth in § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.), occurs. PDM Molding, Inc. v. Stanberg, supra.
Here, it is apparent that the claimant’s temporary disability benefits were originally terminated based upon Dr. Brumfield’s determination that the claimant’s back condition reached MMI in September 1993.
However, the ALJ has effectively determined that the claimant’s condition worsened after MMI, and that the worsening is a compensable consequence of the industrial injury. This circumstance would justify “reopening” under § 8-43-303(1), C.R.S. (1995 Cum. Supp.), irrespective of the treating physician’s determination that the claimant originally reached MMI in September 1993. This is true because a finding that the claimant’s condition has deteriorated is fundamentally inconsistent with the conclusion that the claimant is at MMI as defined by § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.). See Donohoe v. ENT Federal Credit Union,
W.C. No. 4-171-210, September 15, 1995; Patla v. Bethesda Care Center,
W.C. No. 4-150-170, July 20, 1995.
Once the ALJ determined that the claimant’s condition was no longer stable, the respondents’ entire rationale for the termination of temporary disability benefits ceased to be justified. This is true because the claimant was longer at MMI for the effects of the industrial injury, and termination of benefits under § 8-42-105(3)(a) was no longer appropriate.
To the contrary, once the claimant demonstrated a worsening of condition, and the consequent destabilization of his condition, he established that his wage loss was once again “temporary,” and that he was sustaining a wage loss during the “healing period” prior to MMI. Cf. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).
The respondents’ argument notwithstanding, the claimant was not required to establish that he was suffering from additional restrictions as a result of the worsened condition. He was merely required to establish that he was again suffering a temporary wage loss, and that this wage loss was connected with the injury. He did so by establishing that he was not at MMI, and that the effects of the injury precluded him from returning to his pre-injury employment. See PDM Molding Co., Inc. v. Stanberg, supra.
Put another way, this case can be treated no differently, for purposes of temporary disability, than if the back and shoulder injuries occurred contemporaneously.
IT IS THEREFORE ORDERED that the ALJ’s order, dated May 25, 1995, is set aside.
IT IS FURTHER ORDERED that the matter is remanded with instructions to enter an order determining when the claimant’s temporary disability benefits commenced, and for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed April 12, 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
Chad J. Hessel, Esq., 101 N. Cascade Ave., #400, Colorado Springs, CO 80903
(For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
(For the Claimant)
By: ____________________