W.C. No. 4-546-027.Industrial Claim Appeals Office.
November 22, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 27, 2006 to the extent that it denies the claimant temporary total disability benefits (TTD) after reopening his claim. We affirm.
The claimant sought to reopen his claim, obtain diagnostic procedures, have penalties assessed against the respondents for failing to pay a medical bill, and receive TTD benefits. The ALJ determined that the respondent insurer acted reasonably in denying payment of an emergency room visit based upon the decision of another ALJ that the treatment was unrelated to the claimant’s compensable cervical spine injury. He therefore declined to assess penalties against the respondents. Two authorized treating physicians opined that the claimant should undergo two diagnostic procedures to determine whether the claimant’s pain symptoms in the left side of his back were related to the cervical fusion performed earlier to treat his injury. The ALJ credited the doctors’ opinions and ordered the respondents to pay for the procedures. The ALJ also reopened the claim based on the opinions of the doctors that the claimant’s condition had worsened since reaching maximum medical improvement (MMI). However, the ALJ found that the claimant failed to establish that he was entitled to TTD benefits because the work restrictions imposed by Dr. Chang, one of the authorized treating physicians, had not changed since the claimant reached MMI. The ALJ made the corresponding finding that the claimant failed to show that his worsened condition “caused a greater impact on his work capability than he originally sustained as a result of his industrial injury.” Findings of Fact, Conclusions of Law, and Order (Order) at 4, ¶ 13.
The claimant asserts that the weight of the evidence establishes that the claimant’s worsened condition actually resulted in increased restrictions that entitle him to ongoing TTD benefits. In support of his assertion, the claimant argues that his testimony, together with the opinions of his treating physicians and the ALJ’s findings, establish his entitlement to TTD benefits. We are unpersuaded that the ALJ erred.
The ALJ concluded that the claimant had to demonstrate that his “worsened condition caused a greater impact on his temporary work capability than he originally sustained as a result of the industrial injury.” Order at 5, ¶ 6. See City of Colorado Springs v. Industrial Claim appeals Office, 954 P.2d 637, 640
(Colo.App. 1997). In that case, the court held that in order for the claimant to receive additional TTD benefits after reaching MMI the claimant must show that the worsened condition caused additional physical (or presumably mental) restrictions resulting in greater impairment of the claimant’s “temporary work capability” than existed at the time of MMI. Id. The rationale for this holding is that once the claimant reaches MMI, any impairment of earning capacity is permanent and is compensated by permanent disability benefits. In order for impairment of earning capacity to again be “temporary,” the claimant must show the effects of the worsened condition have caused an impairment of earning capacity beyond that compensated by the permanent disability benefits.
The question of whether the claimant met the burden to prove the worsening of condition caused additional temporary impairment of his earning capacity, which would entitle him to TTD benefits was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The mere fact the evidence might have supported another result does not afford grounds for appellate relief. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
It is true that disability need not be proven by medical evidence. Lymburn v. Symbios Logic, supra. However, it does not follow the ALJ must ignore the absence of medically imposed restrictions when determining whether the claimant met the burden of proof to establish additional restrictions which temporarily impaired the capacity to earn wages. In determining that the claimant had not sustained a greater impact on his capacity to work due to his worsened condition, the ALJ found that the claimant’s work restrictions had not changed since being placed at MMI. Order at 4, ¶ 13. The claimant’s work restrictions when he reached MMI, as found by the ALJ, prohibited the claimant from lifting more than 30 pounds below shoulder level, or more than 20 pounds above his shoulders. Order at 2, ¶ 4. As noted by the respondents, the work restrictions imposed by the treating physicians did not change. Dr. Jatana testified that he imposed the work restriction of lifting no more than 20 pounds above his shoulder. Jatana Depo. at 21. Dr. Chang testified that he never changed the claimant’s work restrictions since he attained MMI. Tr. at 78.
As noted by the claimant, the ALJ credited the claimant’s testimony that he suffered new symptoms after being placed at MMI that cause him pain and discomfort, but that he did not suffer a new injury. Order at 3, ¶ 10. The ALJ also credited the treating physicians’ testimony that the claimant’s condition worsened since reaching MMI. Order at 3, ¶ 11. The ALJ could permissibly find the claimant’s testimony as to his suffering pain and discomfort without a new injury as supporting either a worsening of the claimant’s condition or his entitlement to diagnostic procedures. However, the ALJ also found that the claimant’s work restrictions had not changed and the ALJ therefore found that the claimant failed to establish that his worsened condition caused a greater impact upon his temporary work capability than had his original injury. Order at 4, ¶ 13 and at 5, ¶ 6. The extent to which the ALJ found the claimant’s testimony, together with the testimony of the treating physicians, to be persuasive concerning the issues of reopening and TTD benefits is supported by the record and is binding on review. Metro Moving and Storage Co. v. Gussert, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
Joseph Giammarino, Denver, CO, Contemporary Services Corporation, Mark Glaser, Denver, CO, TIG Premier Insurance Company, Steven Noblett, Irving, TX, Ritsema Lyon, Michael Perales, Esq., Denver, CO, (For Respondents).
Sawaya Rose, P.C., Michael Kaplan, Esq., Denver, CO, (For Claimant).