W.C. No. 4-349-652Industrial Claim Appeals Office.
August 18, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Kozelka (ALJ) which denied her claim for temporary disability benefits from June 30 to December 8, 1999. We affirm.
On August 7, 1997, the claimant suffered a work-related back injury. The respondents admitted liability for temporary disability benefits. When the claimant refused surgery, Dr. Birney placed the claimant at maximum medical improvement (MMI). The respondents filed a Final Admission of Liability which terminated temporary disability benefits effective June 29, 1999, the date of MMI.
The claimant subsequently suffered a worsened condition and was diagnosed with depression. The respondents voluntarily reopened the claim effective January 18, 1999, but refused to pay additional temporary disability benefits. On December 9, 1999, the claimant underwent back surgery and the respondents voluntarily reinstated temporary disability benefits.
The claimant requested temporary disability benefits retroactive to January 19, 1999. Based upon the evidence presented at a hearing on June 7, 1999, and expressly relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997), ALJ Martinez determined the claimant failed to prove entitlement to temporary disability benefits commencing January 19, 1999. On December 29, 1999, we affirmed that denial of benefits. Our order is currently pending review by the Court of Appeals.
In the meantime, the claimant filed an Application for Hearing seeking temporary total disability benefits from June 30, 1999 to December 8, 1999. Following a hearing on January 25, 2000, the ALJ issued the order that is now before us for review. The ALJ determined the claimant is collaterally estopped from litigating the claim for temporary disability benefits between June 30 and December 8, 1999. The ALJ further found that even if the claimant is not collaterally estopped, the claimant failed to sustain her burden to prove entitlement to additional temporary disability benefits.
On review, the claimant contends the ALJ erroneously determined she is barred from claiming temporary disability benefits for the period June 30 to December 8, 1999. The claimant also contends the ALJ erroneously failed to find that she sustained her burden to prove the right to additional benefits. We perceive no error in the ALJ’s determination that the claimant failed to sustain her burden of proof, and the ALJ’s determination supports the denial of additional temporary disability benefits. Consequently, we need not consider whether the ALJ erroneously found the claimant is collaterally estopped from litigating the issue. See § 8-43-310 C.R.S. 1999.
Section 8-42-105(3)(a), C.R.S. 1999, terminates temporary disability benefits when the claimant reaches MMI. In City of Colorado Springs v. Industrial Claim Appeals Office, supra
(Ballinger), the court concluded that a worsening of condition after MMI does not entitle a claimant to additional temporary total disability benefits if the worsened condition “caused no greater impact” upon the claimant’s temporary work capacity than existed at the time of MMI. 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. No additional medical restrictions were imposed as a result of the shoulder injury. Consequently, the Ballinger court concluded that the claimant failed to prove the shoulder injury caused an additional wage loss which would entitle him to further temporary disability benefits.
The question of whether a worsened condition has caused a greater impact on the claimant’s work capacity than existed at the time of MMI is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. 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. 1999; Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000).
The claimant’s arguments notwithstanding, the evidence failed to persuade the ALJ that the claimant’s depression caused any additional wage loss between June 7, 1999, and December 8, 1999. and we cannot say the evidence compels a contrary determination. The claimant testified that her psychological condition, memory loss, and energy level worsened between March 1999 and June 30, 1999. (Tr. pp. 35, 37-38,49). She stated that as a result, she was unable to perform her regular job. (Tr. p. 43). However, on cross-examination, the claimant stated her belief that she has been continuously unable to perform the duties required of her regular employment since the date of injury. (Tr. pp. 51, 52). Consequently, she agreed that her change of condition in June 1999 did not have any effect on her ability to earn wages. (Tr. p. 60). She also admitted that her physical limitations for sitting and standing have not changed since January 1999. (Tr. p. 55).
Furthermore, the claimant testified that her psychological condition, motivation, and concentration improved after June 30, 1999, when she began taking Remeron for depression. (Tr. pp. 55. 57). The claimant’s testimony is consistent with Dr. Mitchell’s clinic notes dated August 10, 1999 and October 22, 1999. Based on this record, the ALJ could reasonably conclude the evidence was insufficient to establish that the claimant’s depression caused any greater impact on the claimant’s earning capacity than existed at the time of the prior order of ALJ Martinez.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 1999. 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 August 18, 2000 to the following parties:
Bernice Lyons, P. O. Box 233, Silt, CO 81652
Avis Barton, Lowe Enterprises, Inc., Destination Resort Management, P. O. Box K-3, Aspen, CO 81612
Mimi Sacone, Adjuster, Safeco Insurance Companies of America, P. O. Box 5687, Denver, CO 80217-5687
Gudrun Rice, Esq., 101 S. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Eliot J. Wiener, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado