W.C. No. 4-343-840.Industrial Claim Appeals Office.
March 3, 2005.
FINAL ORDER
The claimant and the respondent separately seek review of a Supplemental Order of Administrative Law Judge Mattoon (ALJ) which reopened the claim based on a worsened condition and awarded additional medical benefits. The respondents contend the ALJ erroneously reopened the claim. The claimant contends the ALJ erroneously denied his request for additional temporary disability benefits. We affirm.
The claimant suffered compensable injuries to his low back and hip in 1997. The claimant was placed at maximum medical improvement (MMI) on September 15, 1997 and released to modified employment. On October 3, 1997, the claimant’s employment terminated when he went out on strike. The claim was subsequently closed pursuant to the respondents’ filing of an uncontested Final Admission of Liability (FAL).
In 2003 Dr. Bergland opined the claimant’s back condition had worsened and recommended the claimant obtain IDD intermittent traction therapy. In November 2003, the petitioned to reopen the claim and alleged a worsening of his low back and lower extremity.
The respondents refused voluntarily to reopen the claim and arranged for the claimant to be evaluated by Dr. Ridings. Dr. Ridings opined the claimant’s condition had not changed since MMI and that the treatment recommended by Dr. Bergland was not reasonable or necessary.
Crediting the opinions of Dr. Bergland, the ALJ found the claimant suffered a worsened condition from the industrial injury. Further, the ALJ rejected the respondents’ contention that the claim was barred from reopening under the 2 year statute of limitations in § 8-43-303(2)(a), C.R.S. 2004. Therefore, the ALJ reopened the claim and awarded additional medical benefits. However, relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the ALJ determined the claimant failed to prove entitlement to additional temporary disability benefits.
I.
On review, the respondents renew their contention that the claim is barred from reopening because the petition to reopen was not filed within 2 years of October 2001 when the claimant received a lump sum award of permanent disability benefits. We disagree.
Section 8-43-303(1), and (2)(a), C.R.S. 2004, provide that a claim may be reopened within six years after the date of injury or within two years of the date the last temporary or permanent disability benefit has becom due or payable on grounds of a change of condition. As acknowledged by the respondents, in University of Denver v. Industrial Commission, 138 Colo. 505, 335 P.2d 292 (1959), the court concluded that when a claimant is awarded permanent partial disability (PPD) benefits to be paid in monthly installments the statutory time for reopening under §8-43-303(2)(a) runs from the date when the periodic payments would have terminated if paid in monthly installments even if the claimant receives the benefits in a lump sum award. In so doing the court recognized the respondents’ argument that in the usual contractual sense nothing more was “due and payable” after the defendants made the lump sum payment. Nevertheless, the court noted that “parties cannot by private contract abrogate statutory requirements or conditions affecting the public policy of the state.” Further, the court concluded that “the applicable part of the law is an inherent part of any agreement permitted under the Workers’ Compensation Act.” Id. at 294. Therefore, the court held that the time provided by statute for reopening a claim becomes fixed “as of the date of the final award regardless of whether the sum was paid periodically or later commuted.” Id. at 294.
The respondents essentially contend University of Denver v. Industrial Commission, supra, was wrongly decided. However, we and the ALJ are bound by published decisions of the Court. C.A.R. 35 (f).
Here, the respondents’ February 1998 FAL admitted liability for PPD benefits to be paid at the rate of $257.38 per week from September 15, 1997 through June 20, 2002. Thus, the FAL fixed the two year statute of limitations as commencing June 20, 2002 and ending June 20, 2004. Under these circumstances, the ALJ correctly determined that the claimant’s November 2003 petition to reopen was timely and the claim was not time barred from reopening regardless of the October 2001 lump sum payment See University of Denver v. Industrial Commission, supra,
The respondents also contend the ALJ’s finding of a worsened condition is not supported by substantial, credible evidence. Specifically, the respondents contend the ALJ erroneously credited the opinions of Dr. Bergland in light of evidence Dr. Bergland stood to benefit financially from the claimant’s use of an IDD intermittent traction therapy machine.
The respondents arguments essentially request that we reweigh the evidence and substitute our judgment for that of the ALJ concerning the probative weight of the expert medical testimony. We have no authority to do so. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995) Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ’s credibility determinations from conflicting evidence are binding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986). We conclude Dr. Bergland’s testimony was not overwhelmingly rebutted.
There was a direct conflict between the opinions of Dr. Bergland and Dr. Ridings. The ALJ expressly recognized Dr. Bergland’s admission that he stood to benefit financially if the claimant underwent additional treatment consistent with his recommendations. However, we reject the respondents contention that this evidence precluded the ALJ from crediting Dr. Bergland’s opinion that the claimant experienced a worsening of condition based on objective changes between a 1994 MRI and a 2004 MRI test. Therefore, we perceive no basis to disturb the ALJ’s decision to credit Dr. Bergland’s opinions and Dr. Bergland’s opinions support the ALJ’s order reopening the claim.
The respondents further arguments have been considered and do not alter our conclusions.
II.
The claimant contends the ALJ erroneously denied his request for additional temporary disability benefits by application of § 8-42-103(1)(g) and § 8-42-105(4), C.R.S. 2005 (the termination statutes). The claimant argues, inter alia that the termination statutes are not applicable to this claim. Further, the claimant alleges the ALJ erred in finding the claimant failed to sustain his burden of proof under City of Colorado Springs v. Industrial Claim Appeals Office, supra. We perceive no reversible error.
The termination statutes were enacted July 1, 1999 and expressly apply to injuries on or after that date. See 1999 Colo. Sess. Laws, ch. 90 at 266. Therefore, we agree with the claimant that the termination statutes are not applicable to this 1997 injury claim. However, the error is harmless because we uphold the ALJ’s finding that the claimant otherwise failed to establish entitlement to additional temporary disability benefits. See § 8-43-310 C.R.S. 2005; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
Section 8-42-105(3)(a), C.R.S. 2004, terminates temporary disability benefits when the claimant reaches MMI. A subsequent worsening of condition does not necessarily entitle the claimant to an award of temporary disability benefits even if the claimant is unable to return to the preinjury employment. City of Colorado Springs v. Industrial Claim Appeals Office, supra; Walsh Healthcare Center v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1539, May 27, 1999) (not selected for publication). To the contrary the claimant must prove that the worsening resulted in additional physical restrictions which, in turn, caused impairment of the claimant’s residual earning capacity beyond that which existed at MMI. If the claimant fails to satisfy these elements of proof, it is presumed the impairment of the claimant’s earning capacity remains permanent. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998); Wujcik v. City of Colorado Springs,
W.C. No. 4-122-742 (August 28, 1998).
The question of whether the claimant has sustained his burden of proof is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2004 Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
Here, the ALJ found the claimant has not returned to work and has “not sought other work,” since October 1997. The ALJ’s finding is amply supported by the claimant’s testimony and, therefore is binding on review.
Furthermore, the ALJ found and it is undisputed that the claimant developed a disabling, non-industrial, cardiac condition in January 1999, and in December 2003 was declared 100 percent disabled by the Veterans Administration due to a post-traumatic stress disorder. Under these circumstances, we are not persuaded evidence the claimant’s worsened condition impaired his ability to walk, dress and stand compelled a finding that the worsened condition was actually a causative factor in the claimant’s continued unemployment.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated December 14, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
Alejandro Davila, Jr., Pueblo, CO, CFI Steel, L.P. d/b/a Rocky Mountain Steel Mills, Pueblo, CO, Carolyn Bjur, Oregon Steel Mills, Portland, OR, Emily S. Finn, Sedgwick CMS, Inc., Greenwood Village, CO, Cullen A. Wheelock, Esq., Colorado Springs, CO, (For Claimant).
Katherine Markheim Lee, Esq. and Kristin A. Caruso, Esq., Denver, CO, (For Respondent).