W.C. No. 4-263-123Industrial Claim Appeals Office.
May 27, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which granted a petition to reopen based on worsened condition and awarded temporary total disability (TTD) benefits commencing January 29, 2002. The respondents contend the evidence does not support the award of TTD benefits because there is no evidence the worsened condition resulted in additional restrictions, or that any additional wage loss resulted from the worsening of condition. We affirm.
The ALJ’s findings may be summarized as follows. The claimant sustained a compensable back injury in 1995, and underwent a L5-S1 fusion surgery in 1996. The surgery was revised in 1997 and a bone stimulator was implanted. The claimant reached maximum medical improvement (MMI) in 1998, and was rated as sustaining a 30 percent whole person medical impairment. The rating physician placed the claimant in the “sedentary” work category and imposed substantial permanent restrictions on lifting, sitting, walking, standing, and other activities. On August 4, 1998, the respondents filed a Final Admission of Liability (FAL) for permanent partial disability benefits based on the 30 percent rating. The claimant did not timely contest the FAL in accordance with the statutory procedures.
The claimant did not return to work after June 15, 1995. However, she unsuccessfully sought employment in the retail field. After MMI the claimant experienced increasing pain and was diagnosed with a non-union at the site of the prior fusion. Consequently, on January 29, 2002, the claimant underwent surgery to attempt a solid fusion.
At the hearing, the following colloquy occurred between the claimant and claimant’s counsel:
Q: Since you had the surgery January 29, 2002, have you been released by the doctor to return back to work?
A: Not at this point. I saw the doctor on May 29. He told me he would like to see me again in six months. I made an appointment. I have an appointment on November 9th at 9:00 in the morning.
Based on this evidence, the ALJ found the claimant’s condition worsened so as to require surgery on January 29, 2002. Consequently, the ALJ reopened the claim. The ALJ further inferred, based on the testimony cited above, that the claimant’s surgeon temporarily restricted the claimant from returning to any work after the surgery, and the restriction was the cause of the claimant’s temporary wage loss commencing January 29, 2002. Consequently, the ALJ awarded TTD benefits commencing January 29.
I.
On review, the respondents first contend there is no evidence the surgery resulted in increased restrictions beyond those which existed on the date of MMI. In support the respondents point out the claimant admitted the permanent restrictions first imposed in 1998 remained the same at the time of the hearing in July 2002. The respondents further argue the ALJ incorrectly inferred from the claimant’s testimony that the surgeon restricted the claimant from any employment commencing January 29. Rather, the respondents assert the only plausible inference from the testimony is that the doctor did not address the question of whether the claimant could return to work. Finally, the respondents contend the ALJ’s consideration of the claimant’s testimony concerning the surgeon’s failure to release her amounts to a denial of due process. We perceive no error.
Where the claimant seeks to reopen based on a worsened condition and obtain additional TTD benefits, the claimant must prove that the worsening of condition has resulted in additional restrictions beyond those which existed at MMI, and that these restrictions have resulted in additional temporary wage loss. Otherwise, the impairment of the claimant’s earning capacity remains permanent. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
The question of whether the claimant has proven these elements is one of fact for determination by the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Chapman v. Dow Chemical Co., W.C. No. 4-102-842 (May 12, 2000), aff’d. Dow Chemical Co. v. Industrial Claim Appeals Office, (Colo.App. No. 00CA1044, December 21, 2000) (not selected for publication). Because these issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to consider 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. If the evidence permits two equally plausible inferences, we may not substitute our judgment for that of the ALJ concerning which is the proper inference. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Here, the ALJ plausibly inferred from the claimant’s testimony that the surgeon temporarily restricted her from returning to any work after the surgery. In this regard, the evidence indicates the claimant was placed in the sedentary work category after reaching MMI in 1998. Therefore, when the claimant’s attorney asked if she had been released to “return back to work” after the surgery and the claimant replied “not at this point,” the ALJ logically inferred the claimant was at least temporarily restricted to a greater degree than she was previously. It is perhaps possible, as the respondents argue, that the testimony could be interpreted as meaning the surgeon expressed no opinion concerning the claimant’s ability to work. However, we cannot say that inference is any more plausible than the one drawn by the ALJ.
Moreover, as the ALJ found, the claimant underwent back surgery on January 29. We think the ALJ could infer from that fact alone that the claimant was totally disabled, at least beginning on January 29. Thus, the ALJ could also infer that if the surgeon had not released the claimant to return to work by the date of the hearing, she remained totally disabled. Moreover, the surgeon opined as early as September 28, 2000, that he did not believe the claimant was able to work. The intervening occurrence of back surgery is hardly an argument for concluding the physician changed this opinion.
The fact the claimant testified that her restrictions were not changed does not alter our conclusion. The restrictions to which the claimant was referring were the permanent restrictions imposed in 1998. The fact the claimant testified the permanent restrictions were not changed does not rule out the possibility of intervening temporary restrictions which prohibited work. In fact, the claimant testified that she believed she might be referred for another “disability testing” in November 2002.
The respondents also assert the ALJ denied them due process by inferring from the claimant’s testimony that the surgeon restricted the claimant from returning to work. However, the respondents did not object to the testimony, and may not now complain of the ALJ’s consideration of and plausible interpretation of the testimony. C.R.E. 103(a)(1). If the respondents believed counsel’s question assumed facts not in evidence, or that the claimant’s answer was based on hearsay and was not competent, they should have objected to the question or requested that consideration of the claimant’s answer be stricken or restricted in scope. The respondents knew the issues to be considered, and that the ALJ would consider the claimant’s testimony unless objected to and excluded. Thus, the respondents were afforded the opportunity for a fair hearing which due process requires. Hendricks v. Industrial claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (due process requires parties to be apprised of evidence to be considered and afforded an opportunity to present evidence and confront adverse evidence). The fact the respondents did not take advantage of an available remedy by objecting to counsel’s question or the claimant’s answer does not amount to a denial of due process. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318
(Colo.App. 1994) (failure to exercise available remedy does not equate to denial of due process).
II.
The respondents next contend the evidence does not support the ALJ’s finding that the increased restrictions caused by the January 2002 surgery caused additional impairment of the claimant’s earning capacity so as to justify the award of TTD benefits. The respondents cite the claimant’s inability to obtain work after being placed at MMI and the fact the claimant was awarded Social Security disability benefits. In any event, the respondents contend the findings of fact are insufficient to support appellate review of the award. We disagree with these arguments.
As we have previously held, City of Colorado Springs does not require that the increased restrictions result in an actual loss of wages, provided the restrictions cause an additional impairment of the claimant’ capacity to earn wages. This conclusion is based on the court’s statement that the worsened condition must cause a greater impact on the claimant’s temporary work “capability” than existed at the time of MMI, as well as its reliance on El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). City of Colorado Springs v, Industrial Claim Appeals Office, 954 P.2d at 640; Lively v. Digital Equipment Corp., W.C. No. 4-330-619 (June 14, 2002).
Here, there is ample evidence from which the ALJ could infer the claimant’s capacity to earn temporary wages was reduced by the worsening of condition. As the ALJ recognized, the claimant was placed in the sedentary work category when she originally reached MMI. Thus, although she was substantially restricted, no physician prohibited here from returning to the labor market, and the ALJ plausibly inferred she retained some earning capacity. However, when the claimant became disabled from performing any work in January 2002, the ALJ logically found the claimant’s capacity to earn wages was eliminated, at least on a temporary basis. See El Paso County Department of Social Services v. Donn, supra; Kreimeyer v. Concrete Pumping Inc., W.C. No. 4-303-116
(March 22, 2001). The mere fact the claimant did not find work within her pre-injury field did not require the ALJ to find as a matter of law that the claimant had no residual earning capacity after being placed at MMI.
Moreover, when the respondents filed the 1998 FAL they admitted for permanent partial disability benefits, not permanent total disability. Thus, in 1998 the respondents themselves took the position the claimant retained some earning capacity despite the restrictions imposed at that time. Cf. Lively v, Digital Equipment Corp., supra; Kreimeyer v. Concrete Pumping Inc., supra. It follows that the respondents’ current position is contradicted by the position which they previously took in this case.
Finally, we have no difficulty in ascertaining the basis of the award from the ALJ’s extensive findings of fact. Consequently, the findings are sufficient to support appellate review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 27, 2003 to the following parties:
Sandra E. Ridley, 3099 S. Cherry Way, Denver, CO 80237
K-Mart Corp. (Store No. 4918), 9401 E. Arapahoe Rd., Greenwood Village, CO 80112
K-Mart, P. O. Box 66749, St. Louis, MO 63166-6749
K-Mart Corporation, 3100 W. Big Beaver Rd., Troy, MI 48084-3163
Susan Heil, Cambridge Integrated Services Group, Inc., P. O. Box 6111, Covina, CA 91723
Richard L. Susman, Esq., 155 S. Madison St., #308, Denver, CO 80209 (For Claimant)
Margaret Keck, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondent)
By: A. Hurtado