W.C. No. 4-303-116Industrial Claim Appeals Office.
March 22, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones Stuber (ALJ) dated October 27, 2000. The respondents contend the ALJ erroneously awarded temporary total disability benefits commencing May 9, 2000. We disagree, and therefore affirm.
In 1996, the claimant suffered a compensable back injury which required surgical treatment. On November 20, 1998, Dr. McLaughlin placed the claimant at maximum medical improvement (MMI), and released the claimant to return to sedentary work which did not require lifting more than 10 pounds, or frequent bending or walking. The claimant was also restricted from standing or sitting over 15 minutes at a time, or more than 2 hours a day. The claimant testified that he looked for work within his restrictions, but received no job offers.
On September 1, 1999, Dr. Reiss diagnosed the claimant as suffering a nonfusion of the lumbar spine at the level of the prior surgery, and recommended repeat fusion surgery. The claimant underwent the additional surgery on May 8, 2000.
To establish entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that he left work as a result of the disability, and that he was disabled for more than three regular work days.
Section 8-42-103(1)(b), C.R.S. 2000. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In this context, the term “disability” refers to the claimant’s inability to perform his regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999).
Temporary disability benefits terminate when the claimant attains MMI. Section 8-42-105(3)(a), C.R.S. 2000. Furthermore, in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) (Ballinger), the court concluded that a worsened condition after MMI does not entitle the claimant to additional temporary total disability benefits if the worsened condition has “caused no greater impact upon the claimant’ temporary work capability than he had originally sustained” as the result of the industrial injury. Id. at 640 (emphasis in original).
In an order dated March 10, 2000, another ALJ found that the claimant proved he suffered a worsening of his condition from the industrial injury and was no longer at MMI as of September 1, 1999. We set aside that order for reasons which need not be mentioned here. In the order presently on review, the ALJ found the claimant was hospitalized for one week after the surgery, and was then medically restricted to bed for another one and one-half months. Furthermore, the ALJ determined the claimant has not been medically released to work since the surgery. Because the claimant was released to sedentary employment when he previously reached MMI, the ALJ determined the claimant’s worsened condition as a result of the May surgery caused an a greater impact on the claimant’s temporary work capacity than he originally sustained as a result of the industrial injury. Consequently, the ALJ determined the claimant established entitlement to temporary total disability benefits commencing May 9, 2000.
On appeal, the respondents contend the record fails to support the ALJ’s determination that the claimant established the proof required by Ballinger for an award of temporary disability benefits after May 8, 2000. Relying on the claimant’s testimony that he has never been able to find employment he could perform since the original MMI date, the respondents contend the claimant’s medical restrictions following the repeat fusion have not caused any additional “loss of wages.” We disagree with this argument.
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, the claimant suffered a shoulder injury while receiving treatment for the back injury. At the time of the shoulder injury, the claimant was medically restricted from performing his regular work as a result of the back injury, and no additional medical restrictions were imposed because of the shoulder injury. Therefore, the claimant’s restrictions from the industrial injury remained permanent.
Contrary to the respondents’ argument, the critical issue i Ballinger is not whether the worsened condition actually resulted in an additional temporary wage loss. Rather, relying on El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993), the court concluded that the question is whether the worsened condition has had a greater impact on the claimant’s temporary work “capacity.” In Donn, the claimant was not entitled to temporary total disability benefits after a voluntary retirement when she was medically released to part-time work. However, when the claimant’s condition subsequently worsened and she was physically unable to perform even part-time work, she was awarded temporary disability benefits because the impaired work capacity was due to the injury and not the voluntary retirement. It follows that it is the impact on the claimant’s work “capacity,” not actual wage loss, which determines whether the claimant has established entitlement to temporary total disability benefits when there is a worsening of condition after MMI.
Here, Dr. McLaughlin did not determine the claimant to be permanently totally disabled at MMI. To the contrary, Dr. McLaughlin released the claimant to modified sedentary work. Thus, Dr. McLaughlin inherently believed the claimant retained a residual earning capacity at the time of MMI. Similarly, the respondents did not admit liability for permanent total disability. Instead, the respondents filed a final admission of liability for benefits based upon 20 percent permanent partial disability. It follows that the respondents took the position that the claimant was capable of some employment prior to May 8, 2000.
Further, the claimant testified that he looked for work within the restrictions imposed by Dr. McLaughlin at the time of MMI. (Tr. pp. 18, 19). Even though the claimant did not receive any employment offers, his conduct reflected his deference to Dr. McLaughlin’s opinion that he retained some earning capacity.
However, after the May 2000 surgery, the claimant was precluded from all employment and has not been medically released to modified sedentary work. Accordingly, the record contains substantial evidence from which the ALJ could, and did find that the medical restrictions imposed as a result of the worsened condition caused a greater impact on the claimant’s work capacity than existed at the time of MMI. See Dicamillo v. The Valley Inn Nursing Home, W.C. No. 4-292-687 (June 24, 1999). Consequently, the ALJ did not err in awarding additional temporary disability benefits.
The respondents’ remaining arguments have been considered and are not persuasive. See § 8-43-310 C.R.S. 2000; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded). Admittedly, the ALJ erred in concluding the claimant was bedridden “for almost three months” after the May surgery (Conclusion of Law 4). The evidence reflects and the ALJ also found the claimant was bedridden for one and one-half months after the May surgery. (Finding of Fact 8). However, the error is harmless because the record supports the ALJ’s finding that the claimant has not been released to any employment since the surgery. Consequently, regardless of the time the claimant was medically confined to his bed, the award of temporary disability benefits is consistent with the applicable law. PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 27, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
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 22, 2001 to the following parties:
Lamarr S. Kreimeyer, 16229 E. Linvale Ave., Aurora, CO 80013
Concrete Pumping, Inc., c/o PUMPCO, 6560 Vine Ct., Denver, CO 80229-7411
Mitch Storey, Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy