W.C. No. 4-349-652Industrial Claim Appeals Office.
December 29, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied her request for temporary total disability benefits commencing January 19, 1999. We affirm.
The essential facts are undisputed. In August 1997 the claimant suffered a compensable low back injury. She received conservative treatment from Dr. Birney and declined to undergo fusion surgery. On June 29, 1998, Dr. Birney placed the claimant at maximum medical improvement (MMI), and released her for “light duty” employment consistent with the results of a functional capacity evaluation (FCE).
The claimant returned to Dr. Birney on January 18, 1999, with complaints of depression. Dr. Birney opined that the claimant was no longer at MMI and required treatment for the depression. Dr. Birney also referred the claimant to Tammy Shaw (Shaw) for psychological treatment. Following an evaluation on March 10, 1999, Shaw reported that the claimant exhibited symptoms of depression severe enough to “impact [the claimant’s] performance of any job duties,” and recommended individual therapy.
In view of Dr. Birney’s opinions, the respondents admitted liability for additional medical benefits. However, relying o City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) (Ballinger) the respondents refused to reinstate temporary disability benefits.
Ballinger held that a worsening of condition after MMI does not entitle the claimant to additional temporary total disability benefits unless the worsened condition has caused an additional temporary loss of wages. The Ballinger court concluded that no temporary total disability benefits are due if the worsened condition has “caused no greater impact upon the claimant’s temporary work capacity than he had originally sustained” as the result of the industrial injury. Id. at 640 (emphasis in original).
The ALJ found the claimant failed to prove that her worsened condition caused an additional temporary loss of wages. In support, the ALJ credited Dr. Birney’s opinion that the claimant’s physical limitations and ability to work had not changed since MMI. Further, the ALJ determined that Dr. Birney’s opinions were buttressed by the claimant’s admission she is no more disabled from work than she was at MMI. Consequently, the ALJ denied the claim for temporary disability benefits.
On review, the claimant does not dispute the ALJ’s find that her physical restrictions have not changed since MMI. However, the claimant contends that the opinions of Shaw and Dr. Dahlberg compel the conclusion that her psychological limitations have resulted in a greater temporary wage loss. Further, the claimant contends the ALJ made no findings concerning the effect of th psychological disability, and therefore, she argues the ALJ’s findings of fact do not support the denial of benefits. We disagree.
The ALJ is presumed to have considered all the evidence See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). However, the ALJ is not required to make findings on every item of evidence, just the evidence he found determinative of the issues. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Neither is the ALJ required to explicitly cite evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
The ALJ’s findings reveal that he was not persuaded the claimant’s psychological problems caused any additional wage loss. In so doing, the ALJ implicitly rejected the opinions of Shaw because she only met with the claimant for a one time evaluation on March 10, 1999, and conducted no testing of the claimant’s work abilities. (Finding of Fact 9). The ALJ also relied on Dr. Birney’s testimony that the referral to Shaw was not appropriate because Shaw is a “Mastered Licensed Professional Counselor” and not a psychologist. (Finding of Fact 6).
Instead, the ALJ credited Dr. Birney’s opinion that the claimant’s ability to work was the same on January 19, 1999, as it was at the time of MMI. (Birney depo. pp. 17, 19). Admittedly, Dr. Birney recommended any fusion surgery be postponed until the claimant’s psychological condition was treated and resolved. However, this is not necessarily evidence that the claimant’s psychological condition reduces the claimant’s temporary earning ability beyond the restrictions imposed at the time of MMI.
Moreover, Dr. Dahlberg’s April 20, 1999 report is subject to conflicting inferences. Dr. Dahlberg opined that the claimant’s depression is “restricting to a significant extent.” However, he explained that this is true because depression increases the patient’s “subjective sense of pain.” Thus, Dr. Dahlberg’s opinion actually pertains to limitations from the physical injury. Furthermore, Dr. Dahlberg did not impose any specific restrictions in response to the question of whether the depression has restricted the claimant’s work capacity beyond the physical limitations set forth in the FCE.
Finally, we are not persuaded by the claimant’s argument that Ballinger is factually distinguishable because the claim here involved a “worsening” of condition. 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.
The Ballinger court questioned our analysis of the shoulder injury as a “worsening” of the original injury, rather than a “new injury.” However, the court concluded that under either analysis, the shoulder injury did not entitle the claimant to additional temporary disability benefits because it did not cause an additional loss of wages.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 21, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 29, 1999 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. Pendroy