W.C. No. 4-414-609Industrial Claim Appeals Office.
March 8, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied temporary total disability benefits. We affirm.
The claimant was employed as a van driver. The claimant suffered an admitted injury on January 21, 1999, and was referred to Dr. Sharkey for treatment. Dr. Sharkey released the claimant to return to work and recommended the claimant drive only those vans equipped with an adjustable seat in order to decrease pressure on the claimant’s right leg. The employer’s witness testified that the employer’s vans had adjustable driver’s seats. The claimant’s employment was involuntarily terminated in February 1999.
Following a re-examination on January 12, 2000, Dr. Sharkey opined that the claimant should not “go back to driving at work.” In June 2000, Dr. Sharkey reported that “it appears that long periods of driving (greater than 30 minutes at a time) cause a flareup” of the claimant’s pain symptoms. Consequently, Dr. Sharkey opined the claimant has not been able to work as a driver since the original injury. Dr. Sharkey also imposed restrictions which precluded the claimant from driving over 30 minutes at a time, sitting over 30 minutes, and lifting over 20 pounds. The same month, Dr. Olsen imposed similar restrictions.
Relying on the opinions of Dr. Sharkey and Dr. Olsen, the claimant requested temporary total disability benefits retroactive to January 12, 2000. The ALJ determined the claimant was able to perform his pre-injury driving duties at the time of the termination of employment in February 1999 and has been since that date. Therefore, the ALJ determined the claimant failed to establish the injury caused a disability and denied the claim for temporary disability benefits. In so doing, the ALJ found the medical restrictions imposed by Dr. Sharkey and Dr. Olsen were “incredible.”
On review the claimant contends the ALJ erroneously determined the medical restrictions imposed by Dr. Sharkey and Dr. Olsen were “incredible.” We perceive no reversible 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 may recover temporary disability benefits in connection with the subsequent wage loss if the claimant proves that the industrial injury contributed “to some degree” to the post-termination 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).
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. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995).
Under the substantial evidence test even uncontroverted medical evidence is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Furthermore, the ALJ is not required to assign any special weight to the treating physician’s opinion concerning the claimant’s inability to perform his regular employment, and is not required to explain the basis for rejecting the treating physician’s opinions. See Lymburn v. Symbios Logic, supra; Wells v. Del Norte School District C-7, 753 P.2d 770 (Colo.App. 1987).
At the time of the industrial injury, Dr. Sharkey did not impose any medical restrictions beyond his recommendation for an adjustable driver’s seat. The claimant was examined by several other physicians in 1999, and none imposed any other work restrictions. Similarly, Dr. Harder, whom the claimant sought out on his own, did not impose any other restrictions. In fact, no other restrictions were imposed until after the claimant returned from a 2000 mile driving trip from Colorado to California. In view of the claimant’s testimony that his back felt “about the same” when he returned from California, and that he did not experience an increase of back pain until a week after the trip, the ALJ reasonably inferred that the increased symptoms were not the result of driving to California. (Tr. pp. 44, 45, 64). Under these circumstances, the ALJ could, and did, reasonably find that the opinions of Dr. Sharkey and Dr. Olson that the claimant is physically disabled from driving as a result of the industrial injury were not credible.
Because the ALJ was not persuaded the claimant proved a “disability,” it is immaterial whether the claimant was at fault for the loss of the employment, or the respondent-employer made an offer of modified employment. PDM Molding v. Stanberg, supra. Therefore, we do not consider the claimant’s arguments on these issues.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 24, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 March 8, 2001 to the following parties:
Kevin R. Clark, P. O. Box 16031, Golden, CO 80402
Golden West Commuter LLC, P. O. Box 1171, Golden, CO 80402-1171
Heather Bartlett-Mogg, Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Barrie G. Sullivan, II, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Nancy C. Hummel, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy