W.C. No. 3-106-845Industrial Claim Appeals Office.
May 14, 1998
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Martinez (ALJ). The claimant contends that the ALJ erred in denying temporary disability benefits for the period August 3, 1995 through October 2, 1996. We agree, and therefore, reverse.
It is undisputed that the claimant suffered compensable injuries to her neck and shoulder on September 13, 1992, and was treated by Dr. Fisher. In May 1995 Dr. Fisher and Dr. Burnbaum diagnosed the claimant with right carpal tunnel syndrome (CTS) secondary to the industrial injuries.
The ALJ’s pertinent findings of fact may be summarized as follows. On August 3, 1995, Dr. Fisher placed the claimant at maximum medical improvement (MMI) for the cervical spine injury and rated the claimant’s permanent cervical spine impairment. Dr. Fisher also restricted the claimant from lifting over ten pounds, overhead reaching, stooping, bending and repetitive use of the hands. On September 11, 1995, Dr. Fisher issued a revised rating to include permanent impairment of the right shoulder. Based upon Dr. Fisher’s determination of MMI the respondents terminated temporary disability benefits.
On December 4, 1995, Dr. Fisher reported that the claimant “has not reached maximum medical improvement for her carpal tunnel syndrome” and recommended a carpal tunnel release. The surgery was performed on October 3, 1996. On November 18, 1996, Dr. Fisher imposed medical restrictions related to the CTS and released the claimant to resume the modified employment she obtained on December 15, 1995. However, the parties agree that the modified employment paid less than the claimant’s pre-injury wage.
Under these circumstances, the ALJ awarded temporary total disability benefits for the period October 3, 1996 through November 18, 1996, and temporary partial disability befits from November 19, 1996 to December 12, 1996, when Dr. Fisher placed the claimant at MMI for the CTS.
However, the ALJ found that the claimant was neither totally or partially disabled from the effects of the CTS prior to October 3, 1996. Therefore, the ALJ denied temporary disability benefits for the period August 3, 1995 through December 14, 1995, and temporary partial disability benefits from December 15, 1995 through October 2, 1996.
To receive temporary disability benefits the claimant must prove a causal connection between the industrial injury and the subsequent loss of wages. Section 8-42-103(1), C.R.S. 1997. Specifically, the claimant must prove that the industrial injury caused a disability, that the claimant left work because of the disability, and that the disability resulted in more than three days of lost time from work. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Once the requisite causal connection is established, the claimant is entitled to temporary disability benefits until the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 1997. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Insofar as pertinent, § 8-42-105(3)(a) provides that temporary disability benefits terminate at MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). This is true because at the time of MMI the claimant’s condition is medically stable, and therefore, is “permanent” and no longer “temporary.” Section 8-40-201(11.5), C.R.S. 1997.
In a series of cases we have held that the status of MMI is not divisible and cannot be parceled out among the various components of a multi-faceted industrial injury. Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997); Carrillo v. Farmington PM Group, W.C. No. 3-111-178 (August 26, 1997); Powell v. L D Electric, W.C. No. 4-150-716 (March 21, 1997). In reaching this conclusion we noted that MMI terminates temporary disability benefits and triggers the claimant’s entitlement to permanent partial disability benefits. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Further, permanent impairment cannot be ascertained until MMI. Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). Thus, where a single industrial injury has multiple components, the claimant’s permanent disability cannot be ascertained until the claimant has reached MMI for all compensable components of the injury.
Moreover, a single industrial injury may result in multiple functional impairments, some of which are on the schedule of disabilities and some of which are not. Under such circumstances, the claimant is entitled to have the scheduled disabilities combined with the non-scheduled disabilities to create a single whole person impairment. Section 8-42-107(8), C.R.S. 1997 Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). It follows that it would be impossible to determine whether a claimant’s permanent impairment is to be compensated under the schedule or as a whole person impairment until the claimant has reached MMI from each and every compensable component of the injury.
We also note that scheduled and non-scheduled injuries are subject to different procedural requirements. Unlike a scheduled injury, a party disputing a treating physician’s whole person impairment rating must obtain a Division-sponsored independent medical examination (IME) before the issue of permanent impairment may be litigated. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Accordingly, in the absence of a determination of whether the claimant has suffered any permanent functional impairment of the whole person, the parties cannot determine whether they are required to comply with the IME provisions of § 8-42-107(8)(c). Additionally, if MMI were divisible, the parties could be subjected to multiple IMEs on the issue of permanent impairment.
Similarly, an IME is required to dispute a treating physician’s determination of MMI. Thus, if MMI were divisible, the parties might be required to obtain multiple IMEs to litigate each phase of MMI. That result would be inconsistent with the legislative intent of assuring the “quick and efficient delivery” of workers’ compensation benefits at” a reasonable cost to employers, without the necessity of any litigation.” Section 8-40-102(1), C.R.S. 1997; see also Colorado AFL-CIO v. Donlon supra. Thus, we have held that § 8-42-105(3)(a) does not terminate temporary disability benefits until the claimant has reached MMI for all components of an industrial injury. Bernard v. Current, Inc., supra; Carrillo v. Farmington PM Group, supra Powell v. L D Electric, supra.
We recognize that in City of Colorado Springs v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1893, November 13, 1997) (Ballinger), the court held that where the claimant sought to reopen his claim to obtain additional temporary disability benefits, he was not entitled to the benefits unless the worsened condition created new restrictions causing an additional temporary wage loss. Ballinger 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 for the back injury, the claimant suffered a shoulder injury while performing exercises necessary to treat the back injury. At the time of the shoulder injury the claimant was already medically restricted from performing his regular work as a result of the back injury, and no additional medical restrictions were imposed on account of the shoulder injury. The Ballinger court concluded that, because the shoulder injury “caused no greater impact upon the claimant’ temporary work capacity than he originally sustained as a result of the injury to his back” the claimant was not entitled to further temporary disability benefits as a result of the shoulder injury. (Emphasis in original). See also Saenz v. Russell Stover Candies, W.C. No. 4-245-312 (April 30, 1998) (temporary disability benefits denied where claimant remained at MMI for shoulder injury despite onset of psychological problems which did not result in additional work restrictions).
It is significant that the Ballinger court characterized the claimant’s shoulder injury as a “second” or “separate” injury rather than a worsening of the original injury. Cf. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993) (injuries sustained during treatment of an industrial injury are compensable in the original injury claim under the “quasi-course of employment” doctrine). We agree with the court that, if the claimant’s shoulder injury is treated as a second or separate industrial injury, it is reasonable to require the claimant to prove a disability from the second injury to recover temporary disability benefits in connection with the second injury. However, in view of the facts in Ballinger, we do not read it as standing for the proposition that MMI may, in the first instance, be divided among various aspects of the industrial injury Sandoval v. Denver Housing Authority, W.C. No. 4-268-820
(December 4, 1997).
Furthermore, this claim is factually distinguishable from the circumstances, in Ballinger. Here, unlike Ballinger, the ALJ did not attribute the claimant’s CTS to a second, separate industrial injury after reaching MMI for the compensable components of the original industrial injury, and there is substantial evidence in the record supporting the ALJ’s determination. See (Dr. Sillix report December 23, 1992; Dr. Fisher report December 29, 1994; Dr. Burnbaum report, May 26, 1995). The ALJ also found that Dr. Fisher did not place the claimant at MMI for the CTS until December 12, 1996, and then issued a revised impairment rating to include permanent impairment from the CTS. Although there is evidence in Dr. Fisher’s report of August 3, 1995 which, if credited, might support a contrary inference, it was the ALJ’s sole prerogative to resolve the conflicts in Dr. Fisher’s medical reports. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Moreover, this claim is akin to the facts in Bernard v. Current Inc., supra. The claimant in Bernard suffered a compensable back injury which precluded him from performing his regular employment, and therefore, was awarded temporary disability benefits. Before reaching MMI for the back injury the claimant developed psychological impairment secondary to the back injury. Under these circumstances, we concluded that the MMI determination for the back injury did not terminate the claimant’s entitlement to further temporary disability benefits.
It follows that because this claimant had not reached MMI for the CTS, Dr. Fisher’s determination that the claimant reached MMI for the cervical and shoulder injuries did not terminate her entitlement to further temporary total disability benefits. This is true because the claimant was not at MMI for all components of the injury and none of the other events in § 8-42-105(3) occurred between August 3, 1995 and December 15, 1995. Therefore, the claimant is entitled to temporary total disability benefits through December 14, 1995. The claimant is also entitled to temporary partial disability benefits between December 15, 1995 and October 3, 1996, when she had modified employment within her restrictions but suffered a partial wage loss. Section 8-42-106
C.R.S. 1997. If the parties are unable to agree on the temporary partial disability rate, they may set the matter for a hearing before the ALJ
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated January 21, 1998, is reversed insofar as it denied temporary total disability benefits for the period August 3, 1995 through December 14, 1995, and temporary partial disability benefits for the period December 15, 1995 through October 2, 1996.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
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. 1997.
Copies of this decision were mailed May 14, 1998 to the following parties:
Mary Ann Dowd, 858 25 1/2, #39, Grand Junction, CO 81505
V.F.W. Post 1247, 1303 Ute Ave., Grand Junction, CO 81506
Rebecca Greben, DOWC — Interagency Mail
Stacy Carpenter, Esq., 3154 Lakeside Dr., Ste. 103, Grand Junction, CO 81506 (For the Respondent)
J. Keith Killian, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________