W.C. No. 4-523-655Industrial Claim Appeals Office.
August 19, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability and medical benefits. We affirm.
The claimant suffered a right knee injury in 1996 but did not seek treatment. Also, it is undisputed the claimant suffers from degenerative arthritis which caused pain in the right knee.
On May 2, 2001, the claimant injured his right knee in a motor vehicle accident. The respondents admitted liability for medical benefits. However, the respondents refused to authorize a total knee replacement and pay temporary disability benefits following the claimant’s termination from employment in late July 2001.
The ALJ found the claimant was not responsible for the termination of his employment. However, the ALJ found the claimant had been medically released to return to regular employment prior to the termination. Therefore, the ALJ denied the request for temporary disability benefits. In addition, the ALJ found the claimant failed to prove a causal connection between the need for the total knee replacement and the industrial injury. Therefore, the ALJ denied the request for medical benefits.
On review, the claimant contends the ALJ erroneously denied medical benefits for the total knee replacement recommended by Dr. Larson. We perceive no error.
Initially, we note that the claimant’s Designation of Record includes the “entire files maintained by the Division of Workers’ Compensation” and the Division or Administrative Hearings. The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which suggests the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
The respondents are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2001; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The determination of whether a particular treatment is reasonable and necessary to treat the industrial injury, as opposed to a pre-existing condition, is a question of fact for the ALJ. We may not disturb the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001 City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984). Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
The ALJ expressly credited the opinions of Dr. O’Brien. After reviewing the claimant’s medical records, including the history of right knee problems prior to May 2, 2001, Dr. O’Brien opined that the industrial injury did not contribute to the claimant’s need for a total knee replacement. To the contrary, Dr. O’Brien opined the claimant was a candidate for the total knee replacement “independent” of the May 2 motor vehicle accident which merely caused an “increased level of symptomatology or increased awareness” of knee pain. (O’Brien January 28, 2002 report). Because there is substantial evidence in Dr. O’Brien’s opinions to support the ALJ’s finding that claimant failed to prove the industrial injury contributed to the need for a total knee replacement, we may not disturb the ALJ’s order denying the disputed medical benefits.
Relying on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the claimant contends his wage loss after the termination of his employment was “to some degree” the result of the industrial injury. Consequently, he argues the ALJ erroneously denied his request for temporary total disability benefits. Again we disagree.
As a result of the industrial injury the claimant was temporarily unable to perform his regular job. However, the employer provided modified employment within the claimant’s restrictions, and the claimant does not assert any claim for temporary disability benefits prior to the termination of his employment. Consequently, the issue is whether the claimant established entitlement to temporary disability benefits after the termination of his employment.
To prove entitlement to temporary total disability benefits the claimant must prove the industrial injury caused a “disability.” PDM Molding, Inc. v. Stanberg, supra. The term “disability” refers to the claimant’s physical inability to perform regular employment. McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Where the claimant fails to prove a “disability” no temporary disability benefits are due regardless of the amount of the claimant’s wage loss. This is true because § 8-42-103(1)(a), C.R.S. 2001, requires a claimant to establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain temporary disability benefits PDM Molding Inc. v. Stanberg, supra.
PDM Molding Inc. v. Stanberg, supra, also holds that a disabled employee who is at fault for loss of the employment out of which the injury arose, is not precluded from receiving temporary disability benefits if the claimant proves that the industrial injury contributed “to some degree” to the subsequent wage loss. However, the PDM analysis presumes the claimant is a disabled worker. Accordingly, the PDM analysis is not applicable unless the claimant sustains his burden to prove a “disability.”
Whether the claimant has proven a “disability” is a question of fact for resolution by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8).
Here, the ALJ found that on July 5, 2001, Dr. Ogrodnick released the claimant to return to regular work without limitations. Accordingly, the ALJ found the claimant was not “disabled” at the time of the subsequent employment termination.
The ALJ’s findings are supported by substantial evidence in the record and, therefore, are binding on review. Furthermore, the claimant’s entitlement to temporary disability benefits it is not dependent on whether he actually returned to his regular employment following the physician’s medical release to regular employment. To the contrary, a finding the claimant was not disabled is fatal to the claim for temporary disability benefits. Consequently, we may not disturb the ALJ’s denial of temporary total disability benefits.
The claimant’s remaining arguments on the issues of medical benefits and temporary total disability have been considered but do not persuade us there is any error in the ALJ’s order.
Finally, the ALJ’s order expressly reserved all other issues “for future determination after hearing.” Consequently, we reject the claimant’s contention the ALJ failed to find that the issues of maximum medical improvement, permanent partial disability, and permanent total disability were not ripe for adjudication.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 16, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 19, 2002 to the following parties:
Andrew Beltz, 617 Hackberry Dr., Colorado Springs, CO 80911
Adesa Corporation, 10680 Charter Oak Ranch Rd., Fountain, CO 80817
Larry Rogers, Liberty Mutual Insurance Co., P. O. Box 168208, Irving, TX 75016-8205
Andrew C. Gorgey, Esq., 105 E. Moreno Ave., #101, Colorado Springs, CO 80903 (For Claimant)
Alanna R. Pozzi, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado