W.C. No. 4-534-254.Industrial Claim Appeals Office.
April 15, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated November 20, 2008, that granted the claimant’s petition to reopen, that awarded temporary total disability (TTD) benefits and that denied the respondents’ request to modify the admitted average weekly wage (AWW). We affirm.
The claimant suffered an admitted work injury to his low back in 2001 The respondents filed a final admission of liability terminating TTD benefits as of the date the claimant reached maximum medical improvement (MMI) and admitted for permanent partial disability. Years later, the claimant underwent low back fusion surgery in 2008. The ALJ determined that the claimant had proven by a preponderance of the evidence that he suffered a change of condition after MMI as a natural consequence of the work injury. The ALJ found that the claimant suffered an increased disability since he was placed at MMI and granted the claimant’s petition to reopen. The ALJ awarded TTD benefits, at the previously admitted rate, from the date that the claimant’s treating physician stated that the claimant was no longer at MMI. The respondents bring this appeal.
I.
The respondents first contend that the ALJ erred in reopening the claim for an award of temporary total disability (TTD) benefits. The respondents cite § 8-43-303 (2) C.R.S. 2008 and argue that the only benefits that could have been reopened were medical benefits. We are not persuaded that the ALJ erred.
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As noted by the respondents, § 8-43-303 (2)(a) provides that within two years after the date the last temporary or permanent disability benefits or dependent benefits excluding medical benefits become due or payable an award may be reopened on the ground of a change in condition. If an award is reopened under § 8-43-303 (2)(a) both compensation and medical benefits previously ordered may be increased. In contrast § 8-43-303 (2)(b) provides that within two years after the date the last medical benefits become due and payable that an award may be reopened on the ground of a change in condition but only as to medical benefits and not as to compensation.
The respondents argue that although they have been continually paying for medical benefits the last indemnity benefits paid by them occurred on February 2, 2002. Here the ALJ found the petition to reopen was filed on June 5, 2007. The respondents further argue that the claimant’s request for additional TTD was made more than two years after the last indemnity benefits were paid and under such circumstances, the statute does not permit a claim for additional TTD benefits only for medical benefits. Therefore, the respondents contend the ALJ erred in awarding TTD benefits.
However, in our view analysis of the two separate provisions of § 8-43-303 (2) is not required in this case because § 8-43-303 (1) provides an independent basis for reopening. Section 8-43-303 (1) provides that at any time within six years after the date of injury “any award” may be reopened on the ground a change in condition, and both compensation and medical benefits previously ordered may be increased. See Cordova v. Indus. Claim Appeals Office, 55 P.3d 186, 189 (Colo.App. 2002); Heinicke v. Industrial Claim Appeals Office, 197 P.3d 220, (Colo.App. 2008). It is undisputed that the petition to reopen was filed by the claimant within six years of the date of the injury. Therefore, in our view, the claimant’s petition to reopen seeking additional TTD benefits was not time barred and it was within the discretion of the ALJ to award such benefits.
The respondents further argue that at the time the claimant filed his petition to reopen he was not seeking TTD benefits and only did so by virtue of his application for hearing filed on July 14, 2008 after the six years had run. The respondents contend that at the time the claimant filed his petition to reopen it was unknown to any party whether there was need for wage replacement benefits. Therefore, the respondents argue that as a matter of public policy the request for TTD should have properly been barred by the ALJ. Otherwise, the respondents argue, a claimant could file a petition to reopen on a “hunch” that he may at some point in the future require wage replacement benefits. However, the respondents have not cited any authority for the proposition they assert.
As noted above § 8-43-303 permits a claim to be reopened based upon a change in condition. The power to reopen under the provisions of § 8-43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ’s
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decision unless the record reveals fraud or a clear abuse of discretion Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177
(Colo.App. 1996); Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Here there was considerable delay between the time the petition to reopen was filed on June 5, 2007 and the claimant’s filing of his application for hearing on July 14, 2008. However, any party may request a hearing on issues ripe for adjudication by the filing of an application for hearing. See Office of Administrative Courts’ Rule of Procedure 7, 1 Code Colo. Reg. 104-3 at 3. Here the respondents were at liberty to avoid the delay by filing an application for hearing but failed to do so. Under these circumstances, we do not view the ALJ’s order reopening the case as beyond the bounds of reason.
The claimant in his position paper filled with the ALJ and in his brief in opposition filed with us has argued that the six-year statute of limitations was tolled. The ALJ did not address this argument but found that the claimant filed a timely petition to reopen. Because we concluded above that § 8-43-303 (1) provides a basis for reopening and that the ALJ did not abuse his discretion in reopening the claim it is unnecessary to address the issue of tolling.
II.
The respondents next argue that if the claim is reopened for payment of indemnity benefits, the claimant nonetheless cannot prove a wage loss and therefore is not entitled to TTD. The respondents argue that the claimant had not worked for years prior to filing his petition to reopen thus the worsened condition did not result in any wage loss. The respondents cite City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997) for the proposition that a claimant must demonstrate increased disability since the MMI. We acknowledge that a worsening of condition after MMI may entitle the claimant to additional temporary disability benefits if the worsened condition caused a “greater impact” on the claimant’s temporary work capacity than existed at the time of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, supra.
However, the Panel has previously ruled that City of Colorado Springs v. Industrial Claim Appeals Office, supra, does not require the claimant to establish an “actual wage loss,” where, for example, the claimant was not working immediately before the worsened condition. Moss v. Denny’s Restaurants, W.C. No. 4-440-517 (September 27, 2006). The Panel stated in Lively v. Digital Equipment Corporation, W.C. No. 4-330-619 (June 14, 2002) that: “As we read City of Colorado Springs, in
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order to establish entitlement to additional temporary disability benefits the claimant must show the worsened condition resulted in increased physical restrictions (over those which existed on the original date of MMI), and that the increased restrictions caused a “greater impact” on the claimant’s temporary “work capability” than existed at the time of MMI.”
Furthermore, in Kreimeyer v. Concrete Pumping Inc., W.C. No. 4-303-116
(March 22, 2001), the Panel concluded that the critical issue in cases controlled by City of Colorado Springs is not whether the worsened condition actually resulted in additional temporary wage loss but whether the worsened condition has had a greater impact on the claimant’s temporary work “capacity.” See also El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Ridley v. K-Mart Corp., W.C. No. 4-263-123(May 27, 2003). We are not persuaded to depart from the Panel’s prior conclusions. It follows that it is the impact of the claimant’s work “capacity,” not proof of an actual wage loss, which determines whether the claimant has established entitlement to TTD benefits in connection with a worsening of condition after MMI.
The question of whether the claimant proved increased disability, as measured by a reduction in his capacity to earn wages, was a question of fact for determination by the ALJ. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Moss v. Denny’s Restaurants supra. Consequently, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view 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. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here the ALJ made the following pertinent findings of fact with record support. After the claimant was placed at MMI in 2002 for his admitted work injury to his low back Dr. Sandell documented that the claimant had worsening low back and left leg pain with a new symptom of loss of bladder control. Exhibit A at 19 20. Dr. Sandell, on July 11, 2006, noted increased low back pain and radicular left leg pain and ordered an MRI. Exhibit 1 at 12. On August 9, 2006, Dr. Sandell noted that the new MRI showed worsening of the L5-S1 disc. Exhibit 1 at 11. Dr. Sandell referred the claimant for a surgical opinion with Dr. Sung. Exhibit 1 at 10. Dr. Sung diagnosed a severe collapse at L5-S1. Exhibit 3 at 6. Dr. Sung performed fusion surgery at L5-S1 on May 20, 2008. Exhibit 3 at 3. As of October 20, 2008 Dr. Sandell still had not released the claimant to return to work. Exhibit 1 at 1. In addition, we note that the claimant testified that after the final admission filed by the respondents, his condition became worse and Dr. Sandell removed him from MMI as of April 2008. Tr. at 13 14 21-23.
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The ALJ concluded that the claimant suffered increased disability due to his worsening of condition. In our view, the ALJ’s order is supported by substantial evidence and by the correct application of the law, and we decline to disturb it.
III.
The respondents finally argue that the ALJ abused his discretion in refusing to modify the claimant’s AWW. The respondents argue that it was manifestly unfair for the ALJ to permit the prior admitted AWW to be utilized more than five years since the date of MMI, when the claimant had no income and no real wage loss. The respondents contend that the claimant’s proper AWW should be zero and that ruling otherwise constituted an abuse of the ALJ’s discretion. The ALJ found that the claimant’s AWW for the purposes of his renewed TTD was the admitted AWW. We are not persuaded that the ALJ abused his discretion.
In Avalanche Industries, Inc. v. Clark, 198 P.3d 589 (Colo. 2008), the Supreme Court of Colorado recently affirmed the ALJ’s exercise of discretion in calculating a claimant’s AWW. The court noted the discretionary exception in § 8-42-102(3) C.R.S. 2008, which provides that the ALJ, in each particular case, may compute the average weekly wage in such a manner and by such method as will, in the opinion of the ALJ, fairly determine the employee’s AWW.
Here the ALJ specifically relied on the discretionary exception found in § 8-42-102(3). In cases applying the discretionary exception, we review the ALJ’s decision for an abuse of discretion, only reversing where the ALJ’s determination exceeds the bounds of reason and is unsupported by applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850, (Colo. 1993) (quoting Rosenberg v. Bd. Of Educ. of Sch. Dist. No. 1, supra).
As the ALJ noted, the overall objective of calculating the AWW is to arrive at a fair approximation of the claimant’s earning capacity. Furthermore, another objective of the average weekly wage calculation is to arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity resulting from the industrial injury See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Here the ALJ found that the claimant’s zero earnings on April 3, 2008 were caused by the work injury and so determined that the respondents had failed to demonstrate that the AWW should be modified. We hold that the ALJ did not abuse his discretion in denying the respondents’ request to modify the AWW from the rate previously admitted by the respondents.
IT IS THEREFORE ORDERED that the ALJ’s order issued November 20, 2008 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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ROBERT ROOT, COLORADO SPRINGS, CO, (Claimant).
MITSUI CHEMICALS AMERICA, INC., Attn: DONNA THOMAS, UNIVERSAL CITY, CA, (Employer).
GREAT AMERICAN INSURANCE COMPANY, Attn: JAMES B. FAIRBANKS, ESQ., C/O: TREECE, ALFREY, MUSAT BOSWORTH, P.C., DENVER, CO, (Insurer).
LAW FIRM OF JARAY WEBSTER, Attn: KEN JARAY, ESQ./DAVID WEBSTER, ESQ., C/O: SANTA FE BUILDING, COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: JAMES B. FAIRBANKS, ESQ., DENVER, CO, (For Respondents).
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