W.C. No. 4-217-954Industrial Claim Appeals Office.
May 13, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his claim for temporary total disability benefits commencing May 17, 1997. The claimant argues that because his condition worsened so as to warrant reopening he is entitled to temporary disability benefits. We affirm.
The claimant, who performed heavy labor, sustained compensable injuries to his back and right lower extremity in 1994. The claimant was placed at maximum medical improvement (MMI) in February 1995, and given a 7 percent whole person impairment by the treating physician. The claimant underwent a Division-sponsored medical examination (DIME), and received a 19 percent whole person impairment from the DIME physician. The claim was closed following the filing of a final admission of liability.
Subsequently, the claimant sought to reopen based on a worsened condition. In an order dated June 26, 2002, the ALJ found the claimant’s condition has worsened and he now suffers from reflex sympathetic dystrophy for which he requires “aggressive therapy.”
On November 1, 2002, the matter proceeded to hearing on the claim for temporary total disability benefits based on the worsened condition. However, the ALJ found the claimant failed to prove that the worsening of condition caused additional restrictions resulting in a greater loss of earning capacity than existed at the time the claim was originally closed. In support of this determination the ALJ found the claimant never returned to employment after the original injury and advised one physician that he did not intend to return to work. Further, the ALJ found the claimant’s “physical abilities, activities, and restrictions have remained consistent from the date of MMI to the present.”
On review, the claimant contends that the worsening of his condition warrants additional temporary disability benefits because “his condition has prevented [him] from returning to work, and is a result of his ongoing and current disability.” The claimant also cites the reports of Dr. Parry and his own testimony as evidence that the worsened condition has caused additional disability. We perceive no error.
The ALJ correctly applied the law. When a claimant seeks to reopen a closed claim and obtain additional temporary disability benefits, the claimant must prove the worsened condition caused additional restrictions beyond those existing on the date of MMI, and that the restrictions caused an additional impairment of the claimant’s earning capacity. Otherwise, the claimant’s disability remains permanent. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
The question of whether the claimant proved additional disability is one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Chapman v. Dow Chemical Co., W.C. No. 4-102-842 (May 12, 2000), aff’d. Dow Chemical Co v. Industrial Claim Appeals Office, (Colo.App. No. 00CA1044, December 21, 2000) (not selected for publication). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of requires us to defer to the ALJ’ credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, there is substantial evidence to support the ALJ’s determination that the claimant failed to prove the worsening of condition resulted in additional impairment of his earning capacity. First, there is evidence the claimant was placed in the sedentary work category when he originally reached MMI. As the respondents argue, and the ALJ found, there is no evidence that any physician, including Dr. Parry, placed additional restrictions on the claimant as a result of the worsened condition. Further, the ALJ declined to credit the claimant’s testimony to the extent it may be construed as evidence the claimant’s condition has resulted in additional impairment. The ALJ found this testimony less than credible in light of the claimant’s failure to conduct a “serious” job search after MMI, and because the claimant admitted to the physician that he did not intend to return to work.
It is true there was some evidence in the record which might support a different result. However, on this record there is no basis to interfere with the ALJ’s pertinent findings of fact. Thus, the order must be affirmed.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 20, 2002, 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 13, 2003 to the following parties:
Ralph Corpuz, 1729 Eden Ave., Pueblo, CO 81005
K. R. Swerdfeger Construction, Inc., 421 E. Industrial Blvd., Pueblo West, CO 81007
Legal Department, Pinnacol Assurance — Interagency Mail Richard L. Susman, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Merrily S. Archer, Esq., and John H. Stevens, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
By: A. Hurtado