W.C. No. 4-437-950Industrial Claim Appeals Office.
January 31, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability benefits. We affirm.
The claimant suffered work-related injuries on February 8, 1999, when he fell into the rear emergency door of a bus. The claimant immediately reported the accident to the employer but he did not request medical treatment. The claimant continued to perform his regular employment throughout the remainder of the regular school year that ended on May 27, 1999. Over the summer, the claimant requested and was granted continued employment. On August 25, 1999, the claimant’s employment was terminated for violation of the employer’s smoking break policy.
Following the employment termination, the claimant requested medical treatment for the industrial injury. On September 2, 1999, Dr. Schwender diagnosed a lumbar contusion, left elbow contusion, and questionable cubital tunnel syndrome. Dr. Schwender did not impose any medical restrictions. On September 23, 1999, the claimant was examined by Dr. Moore who did not impose any medical restrictions. However, on October 20, Dr. Schultz imposed medical restrictions which precluded the claimant from lifting greater than 20 pounds. Dr. Schultz also recommended the claimant avoid bending and twisting, and alternate between standing, sitting and walking to reduce low back pain.
The ALJ found the industrial injury did not preclude the claimant from performing his regular job duties which included the ability to lift up to 50 pounds. Further, the ALJ was not persuaded the claimant’s condition sufficiently changed after August 25, 1999, to warrant the work restrictions imposed by Dr. Schultz. Under these circumstances, the ALJ determined the claimant failed to prove the injury caused a “disability,” and denied the claim for temporary disability benefits.
On appeal, the claimant contends the record does not support the ALJ’s finding that he is capable of performing his pre-injury employment as of August 25, 1999. In support, the claimant relies on evidence he “self-modified” his job duties to accommodate his limitations from the industrial injuries. Alternatively, the claimant contends he is entitled to temporary total disability benefits commencing October 20, 1999, when Dr. Schultz imposed medical restrictions which precluded him from lifting greater than 20 pounds. Further, the claimant contends the ALJ erroneously failed to consider whether the industrial injury contributed to his post-termination wage loss. We perceive no error.
To receive temporary total disability benefits, the claimant must prove that the industrial injury caused a “disability” lasting more than three work shifts, that he left work as a result of the disability, and that the disability resulted in an actual wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Where the claimant fails to prove a “disability” caused by the industrial injury, 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. 2000, 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 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 in not applicable unless the claimant sustains his burden to prove a “disability.”
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. The second element is loss of wage earning capacity as demonstrated by the claimant’s inability to “resume his or her prior work.” 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 by restrictions which impair the claimant’s ability effectively and properly to perform his or her regular employment. 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).
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), C.R.S. 2000.
The claimant’s arguments notwithstanding, the ALJ was not required to credit the claimant’s testimony concerning modifications he made to his regular job duties after the injuries. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Neither was the ALJ required to credit Dr. Schultz’s report which imposed medical restrictions effective October 20, 1999. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (even uncontroverted medical evidence is not binding on the ALJ). In fact, evidence the treating physician has imposed medical restrictions is neither required nor dispositive of whether the industrial injury has caused a disability. To the contrary, a treating physician’s opinion concerning the claimant’s ability or inability to perform his regular employment duties is only binding for the purpose of terminating temporary disability benefits under § 8-42-105(3), C.R.S. 2000. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
The record contains substantial evidence to support the ALJ’s finding that the claimant performed his regular job without complaint until his employment termination in August 1999, and did not seek medical treatment for the injury until after the employment termination. Further, the medical record supports the ALJ’s finding that the claimant’s condition did not change between February 8 and October 20, when Dr. Schultz imposed medical restrictions. Reasonable inferences from this evidence support the ALJ’s determination that the claimant failed to prove the injury caused a physical disability.
Moreover, because the ALJ found the claimant failed to prove an industrial disability, the ALJ did not err in failing to apply a PDM analysis in denying temporary disability benefits after August 25, 1999.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 6, 2000, 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. 2000. 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 January 31, 2001 to the following parties:
Jack P. Boyd, 2244 Moccasin Dr., Colorado Springs, CO 80915
Heidi Pace, Academy School District #20, 7610 N. Union Blvd., Colorado Springs, CO 80903
Diane Gutierrez, Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Patrick C. H. Spencer, II, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy