W.C. No. 4-408-571Industrial Claim Appeals Office.
August 29, 2000
FINAL ORDER
The claimant and the respondent separately petitioned for review of a Corrected Order of Administrative Law Judge Hopf (ALJ). The respondent contends the ALJ erroneously awarded medical benefits. The claimant contends the ALJ erred in failing to award temporary disability benefits. We affirm the order with respect to temporary disability benefits and dismiss the respondent’s petition to review without prejudice.
In 1995 the claimant suffered compensable injuries to his neck and shoulder, which are the subject of W.C. No. 4-350-936. Thereafter, the claimant resumed modified employment with the respondent-employer. On November 17, 1998, the claimant’s employment was terminated when the employer could no longer accommodate his medical restrictions. In an order dated November 16, 1999, former ALJ Rumler found that the effects of the 1995 injuries prevented the claimant from working after November 16, 1998. Therefore, ALJ Rumler awarded temporary total disability benefits commencing November 17, 1998, at the maximum rate allowed by law. Section 8-42-105(1), C.R.S. 1999.
This claim W.C. No. 4-408-571, pertains to a compensable right leg injury on November 11, 1998. The maximum temporary total disability rate increased between 1995 and 1998.
The ALJ found that Dr. Rangel is an authorized treating physician for the 1998 injury and awarded medical benefits. However, relying on City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the ALJ found that the 1998 injury caused no greater impact on the claimant’s temporary earning capacity than the claimant sustained as a result of the 1995 injury. Therefore, the ALJ denied the claimant’s request for temporary disability benefits based on the maximum rate allowed by law in 1998.
I.
Pursuant to § 8-43-301(2), C.R.S. 1999, a party may file a petition to review an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty.” Orders which do not award or deny benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Consequently, we have consistently held that a finding of liability for medical benefits is not final and reviewable absent an award of specific medical benefits Poole v. Rocky Mountain Nurses, W.C. No. 4-349-438 (April 13, 1998); Tilton v. ABC Turf Care, W.C. No. 3-105-542 (August 18, 1994). Furthermore, an order may be partially final and partially interlocutory. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843
(Colo.App. 1986).
Here, the ALJ found that Dr. Rangel is an authorized treating physician and ordered the respondents to pay for the “reasonable and necessary medical care rendered by Dr. Rangel relating to the 1998 injury.” However, the ALJ did not expressly determine whether Dr. Rangel’s treatment was reasonable and necessary. Neither did the ALJ order the respondents to pay any specific medical bill from Dr. Rangel. To the contrary, the ALJ reserved all other issues for future determination. Accordingly, the ALJ’s order on the issue of medical benefits is not final and reviewable and we must dismiss the respondent’s petition to review without prejudice.
II.
The claimant contends that ALJ applied the wrong legal standard in denying the claim for temporary disability benefits. The claimant argues that instead of applying the test established in City of Colorado Springs v. Industrial Claim Appeals Office supra, the ALJ should have applied the two part test created i PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We perceive no error.
To receive temporary total disability benefits, the claimant must prove that the industrial injury has caused a “disability” lasting more than three work shifts, that the claimant left work as a result of the disability and that the disability resulted in an actual wage loss. PDM Molding, Inc. v. Stanberg, supra. The term disability, as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage earning capacity as demonstrated by the claimant’s inability to “resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The impairment of earning capacity element of “disability” may be evidenced by a complete inability to work, or by restrictions which impair the claimant’s ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595
(Colo.App. 1998); Chavez v. Manpower, W.C. No. 4-420-518 (May 11, 2000) Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999). Where the claimant fails to prove a “disability” caused by the industrial injury, no temporary disability benefits are due regardless of the amount of the claimant’s wage loss. This is true because § 8-42-103(1)(a), C.R.S. 1999 requires a claimant to “establish a causal connection between a work-related injury and a subsequent wage loss in order to obtain temporary disability benefits. PDM Molding Inc. v. Stanberg, supra.
In City of Colorado Springs v. Industrial Claim Appeals Office, supra, (Ballinger), the coult held that where the claimant seek additional temporary disability benefits due to a worsening of condition after MMI the claimant must prove that the worsened condition caused an additional temporary loss of wages. The claimant in Ballinger 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. At maximum medical improvement (MMI) the claimant had permanent medical restrictions. Four months later the claimant’s condition worsened when he suffered a shoulder injury while receiving treatment for the back injury. However, no medical restrictions were imposed for the shoulder injury. Because the claimant failed to prove that the shoulder injury caused any “disability,” the court concluded that the claimant failed to establish his entitlement to further temporary disability benefits.
PDM Molding, Inc. v. Stanberg, supra, holds that the causal connection between an industrial disability and the claimant’s wage loss is severed where the claimant is “at fault” for the loss of employment. In that event the claimant is precluded from receiving temporary disability benefits unless the requisite causal connection is reestablished by proof that the industrial disability contributed “to some degree” to the subsequent wage loss. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209
(Colo.App. 1996).
Regardless of the factual distinctions, Ballinger and PDM
both stand for the proposition that the claimant bears the burden to prove the injury caused a “disability.” Thus, under either holding, the threshold issue for the ALJ is whether the injury has caused a disability. The resolution of this issue is one of fact for resolution by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8).
Here, the ALJ was not persuaded the claimant sustained his burden to prove that the 1998 injury caused a”disability.” In support, the ALJ relied on the absence of medical records imposing medical restrictions for the 1998 injury. (Finding of Fact 13). Furthermore, the ALJ relied on the previous order of ALJ Rumler in which she determined that the claimant’s temporary total
disability following the employment termination is due to the 1995 injuries. Moreover, a claimant can be no more than temporarily totally disabled. Under these circumstances, the ALJ did not err in finding the claimant failed to sustain his burden of proof for an award of temporary disability benefits based on the maximum temporary total disability rate at the time of the 1998 injury. However, insofar the claimant contends that his temporary total disability benefits should be based on his average weekly wage at the time of the 1998 injury, the claimant is free to raise that argument in W.C. No. 4-350-936. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated April 12, 2000, nunc pro tunc March 16, 2000, is affirmed.
IT IS FURTHER ORDERED that the respondents’ petition to review the April 12, 2000 order on the issue of medical benefits is dismissed without prejudice.
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. 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 29, 2000 to the following parties:
Jeffrey Ruybal, 224 N. 6th St., Windsor, CO 80550
Joni Wheeler, Public Service Company of Colorado, P. O. Box 840, Suite 800, Denver, CO 80201-0840
Joseph M. Goldhammer, Esq. and Susan J. Eckert, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy