W.C. No. 4-334-768Industrial Claim Appeals Office.
June 5, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his claim for temporary total disability benefits. The claimant argues the evidence compelled the ALJ to find that he sustained a worsened condition which resulted in additional temporary wage loss. We affirm.
The claimant sustained a compensable back injury on April 11, 1997, in the course of his employment as a truck driver. After a period of conservative therapy, the claimant was placed at maximum medical improvement (MMI) on September 4, 1997. Eventually, the claimant was awarded permanent partial disability benefits based on medical impairment of nine percent of the whole person. Five percent of the impairment was attributable to psychological problems stemming from depression. The respondents also admitted liability for ongoing medical benefits after MMI.
In June 1999, the claimant filed an application for hearing seeking temporary total disability benefits commencing November 10, 1998. The claimant alleged that he had sustained a “worsening of condition on open case established by two of claimant’s treating physicians, Dr. Leopoldt and Dr. Tice.” The claimant did not file a petition to reopen.
The claimant testified that after being placed at MMI he returned to work at four different trucking companies. However, between February 1998 and November 1998 he experienced increased symptoms including back pain, depression, and difficulty sleeping. The claimant also testified that he was not employed after October 16, 1998, and ceased looking for work on November 10, 1998, because Dr. Tice told him “not to worry about work” until his back condition was “taken care of.” (Tr. pp. 9, 10-13, 20-21). The claimant admitted that his symptoms of back pain and depression improved since receiving treatment after November 10, 1998. (Tr. pp. 22-23).
Citing City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the ALJ noted that a claimant seeking additional temporary total disability benefits after reaching MMI must prove that the worsened condition has “caused an actual additional temporary wage loss.” The ALJ found that even if the claimant was “able to show some worsening,” the evidence established that the “waxing and waning” of the claimant’s symptoms after MMI did not cause additional temporary wage loss.
I.
As a preliminary matter, the respondents argue that we need not consider the merits of the claimant’s appeal because the claim was closed by a final order issued July 24, 1998, and because the claimant did not file a petition to reopen as required by §8-43-303, C.R.S. 1999, and the applicable rules of procedure. However, we reject this argument.
We have previously held that a contention that a claim was closed and the claimant must file a petition to reopen to receive additional benefits is in the nature of an affirmative defense. Consequently, we have concluded that closure is akin to res judicata, waiver, and other procedural defenses which serve to bar a claim. Thus, “in order to take advantage of such defenses, it is the obligation of the proponent to raise them in a timely fashion, or the defenses are waived.” Winters v. Cowen Transfer and Storage, W.C. No. 4-153-716 (December 28, 1995); see also Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo. 1982); Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
Our review of the respondents’ response to the application for hearing, their position statement, and their counsel’s remarks at the commencement of the hearing does not reveal any contention that the claim was closed and the claimant was required to file a petition to reopen to receive additional benefits. Consequently, this argument was waived. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995).
II.
The claimant contends that the ALJ’s denial of temporary total disability benefits commencing November 10, 1998, was erroneous because the uncontradicted evidence establishes that the claimant’s condition worsened after MMI, and that the worsening of condition caused an additional temporary wage loss. In support of this argument the claimant cites his testimony that on November 10 Dr. Tice, a treating physician, advised him to stop working and “concentrate on treating his depression.” We find no error.
We assume, arguendo, that the claimant established a “worsening of condition” subsequent to reaching MMI in September 1997. However, not every worsening of condition subsequent to MMI entitles a claimant to additional temporary disability benefits. The claimant must prove that the worsened condition caused an additional temporary loss of wages. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d at 640. The claimant may satisfy the burden by proving new physical or mental restrictions which, to some degree, cause a greater impairment of wage earning capacity than existed on the date of MMI. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998). Otherwise, the claimant’s impaired earning capacity remains permanent, and no additional temporary benefits are payable. City of Colorado Springs v. Industrial Claim Appeals Office, supra.
The question of whether the claimant has proven temporary disability in the form of increased inability to earn wages is one of fact for determination by the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Temporary disability need not be proven by medical evidence. Lymburn v. Symbios Logic, supra. Neither is there a requirement that the claimant conduct a job search, although failure to conduct a search may be considered. Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
Because the issue of increased disability is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In applying this standard of review, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). The ALJ need not credit testimony, even if it is uncontroverted. Cary v. Chevron U.S.A., Inc., 867 P.2d 117
(Colo.App. 1993). Further, we note the ALJ is not held to a crystalline standard in expressing findings of fact. The ALJ need not make findings concerning every piece of evidence, as long as he enters findings on the evidence which he considers to be dispositive of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, substantial albeit conflicting evidence supports the ALJ’s determination the claimant did not prove that any worsening of his condition caused an additional temporary loss of wages. Specifically, the ALJ found that when the claimant reached MMI in September 1997, the respondents admitted the claimant was entitled to ongoing medical benefits, and the respondents were ordered to pay permanent partial disability benefits based on the claimant’s medical impairment. The medical impairment benefits were payable to the claimant to compensate for a permanent loss of earning capacity. See AFL-CIO v. Donlon, 914 P.2d 396, 404 (Colo.App. 1995). The mere fact that the claimant experienced an increase in symptoms after MMI did not require the ALJ to infer the claimant’s ability to earn wages was more limited in November 1998 than it was in September 1997.
Although the claimant testified that Dr. Tice advised him to stop working on November 10, the ALJ was not required to credit this testimony. This is particularly true because Dr. Tice’s November 10 report does not mention any such restriction or advice. Although Dr. Tice issued a report dated May 13, 1999, stating that the claimant has “not been able to work effectively as truck driver since I 1st saw him in 199[illegible],” the record establishes that Dr. Tice first saw the claimant before he reached MMI in September 1997. Thus, the ALJ was not required to interpret the May 13 report as creating new medical restrictions beyond those at MMI. Further, the ALJ was free to consider that the claimant did not conduct a job search after November 10 as some evidence the claimant did not sustain additional disability Black Roofing Inc. v. West, supra.
It is true that some evidence in the record would support contrary findings of fact and conclusions. However, we are not free to substitute our judgment for that of the ALJ on this state of the record. We need not consider the claimant’s remaining arguments since we have assumed that the evidence supports the existence of a “worsened condition.”
IT IS THEREFORE ORDERED that the ALJ’s order dated November 22, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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 June 5, 2000
to the following parties:
Joseph A. Plotner, 620 Bluegill Dr., Grand Junction, CO 81505
Boggs Trucking, Inc., 442 W. Scenic Dr., Grand Junction, CO 81503-1575
Curt Kriksciun, Esq., Pinnacol Assurance, Inc. — Interagency Mail (For Respondents)
J. Keith Killian, Esq., and Amy K. Eaton, Esq., P. O. Box 4848, Grand Junction, CO 81502 (For Claimant)
BY: A. Pendroy