W.C. No. 4-303-019Industrial Claim Appeals Office.
December 14, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his claim for additional temporary total disability benefits. We affirm.
The claimant suffered a compensable low back injury in 1996. Dr. Cabanilla determined the claimant to be at maximum medical improvement (MMI) on February 25, 1997, and released the claimant to return to modified employment which did not require lifting over 35 pounds and pushing/pulling over 30 pounds. Dr. Cabanilla also recommended the claimant limit bending and stooping.
In January 1998, the claimant’s care was transferred to Dr. Woodyard.In a report dated February 24, 1998, Dr. Woodyard restricted the claimant to “minimal” bend/stoop and lifting less than 35 pounds. On February 26, 1998, Dr. Woodyard reported that the claimant’s condition had worsened to the point that the claimant was no longer at MMI.
Crediting the opinion of Dr. Woodyard, the ALJ found that the claimant was no longer at MMI as of February 26, 1998. However, the ALJ found that Dr. Woodyard’s February 24 restrictions are “markedly similar, if not the same as,” the restrictions imposed by Dr. Cabanilla at the time of MMI. Therefore, the ALJ determined the evidence is insufficient to prove the claimant’s entitlement to further temporary disability benefits. In so doing, the ALJ expressly relied on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) cert. denied, May 11, 1998 (Colorado Springs).
In Colorado Springs, the court held that a worsening of a condition after MMI does not entitle a claimant to additional temporary total disability benefits “unless the worsened condition caused an additional temporary loss of wages.” Colorado Springs
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. At the time of the shoulder injury, the claimant was medically restricted from performing his regular work as a result of the back injury, and no additional medical restrictions were imposed because of the shoulder injury. Under these circumstances, the Colorado Springs court concluded that the claimant was not entitled to further temporary disability benefits following the shoulder injury because the shoulder injury “caused no greater impact upon the claimant’s temporary work capacity than he originally sustained as a result of the injury to his back.” (Emphasis in original).
On review, the claimant contends that Dr. Cabanilla restricted him from lifting over 30 pounds. Therefore, he contends that Dr. Woodyard’s 35-pound lifting restriction is a “new” medical restriction within the meaning of Colorado Springs. We disagree.
First, we note there is substantial evidence in the medical record to support the ALJ’s finding that there is no significant difference between the medical restrictions imposed by Dr. Cabanilla in February 1997 and the restrictions imposed by Dr. Woodyard on February 24, 1998. Furthermore, the claimant’s testimony on this issue is subject to conflicting inferences. The claimant stated that Dr. Woodyard restricted him from lifting over 25 pounds. (Tr. p. 18). However, he also stated that his medical restrictions at MMI were the same as the restrictions imposed by Dr. Cabanilla in February 1997. (Tr. p. 19). It was solely the ALJ’s province to resolve conflicts in the evidence. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Moreover, Colorado Springs holds that evidence of a worsened condition is insufficient to support an award of temporary disability benefits after MMI unless the worsened condition further impacts the claimant’s ability to work. It follows that evidence Dr. Woodyard imposed the same medical restrictions which were imposed at the time of MMI does not support an award of additional temporary disability benefits. Similarly, even if the claimant was restricted from lifting over 30 pounds at MMI, Dr. Woodyard’s 35-pound restriction would not constitute an additional
restriction which could support an award of further temporary disability benefits under Colorado Springs.
Attached to the claimant’s brief in support of the petition to review is a report dated April 1, 1998, in which Dr. Woodyard reduced the claimant’s lifting restriction to 23 pounds. The claimant contends that the April 1 restriction constitutes an additional restriction which further limits his temporary ability to work.
The April 1, 1998 report was not part of the evidentiary record before the ALJ, and we may not consider the evidence for the first time on appeal. See Tr. p. 6; City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988). Therefore, the April 1 report does not permit a conclusion that the ALJ erred in denying the claim for additional benefits. However, we should not be understood as precluding the claimant from petitioning to reopen the issue of temporary total disability benefits on grounds of a change in condition effective April 1, 1998. Section 8-43-303, C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 4, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 14, 1998
to the following parties:
Greg Bohte, 2680 B-1/2 Road, #27B, Grand Junction, CO 81503
American Car Care Centers of Grand Junction, P.O. Box 3268, Logan, UT 84323-3268
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Bonner E. Templeton, Esq., 650 S. Cherry Street, Suite 820, Denver, CO 80246 (For Claimant)
Kendra M. Oyen, Esq., 415 Brach Drive, Grand Junction, CO 81503 (For Respondents)
BY: ____________