W.C. No. 4-245-312Industrial Claim Appeals Office.
April 30, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied her request for temporary total disability benefits for the period November 1, 1995 to February 4, 1997. We affirm.
In October 1994, the claimant suffered a shoulder injury arising out of and in the course of her employment for Russell Stover Candies. Due to the effects of the injury, the claimant was medically restricted from performing her regular employment. The ALJ found that in November 1994, the claimant was terminated from her employment for reasons unrelated to the industrial injury.
On October 3, 1995, the treating physician, Dr. Winkler, determined the claimant to be at maximum medical improvement (MMI) with 7 percent impairment of the right upper extremity. Dr. Winkler also imposed permanent restrictions of no overhead work, no repetitive use of her right arm, and no lifting over 5 pounds frequently and 20 pounds occasionally. Relying on the opinions of Dr. Winkler, the respondents filed a Final Admission of Liability which terminated temporary disability benefits and admitted liability for medical impairment benefits commencing October 3, 1995.
The claimant continued to treat with Dr. Winkler for chronic pain. In May 1996, Dr. Winkler referred the claimant to Dr. Good who treated the claimant for depression. Dr. Good determined the claimant to be at MMI for the depression on February 4, 1997, and Dr. Winkler concurred.
The claimant subsequently applied for a hearing on the issue of temporary disability. The claimant contends that as of November 1, 1995, when the depression “manifested,” she was no longer at MMI. Therefore, she contends that she is entitled to additional temporary disability benefits from November 1, 1995 to February 4, 1997, when Dr. Good placed her at MMI for the depression.
The ALJ found that Dr. Winkler never retracted his opinion that the claimant reached MMI for the shoulder injury on October 3, 1995. Rather, the ALJ found that the claimant remained at MMI for the shoulder injury despite the need for treatment of depression. Further, the ALJ credited Dr. Winkler’s opinion that the depression “alone” did not render the claimant temporarily totally disabled.
In addition, the ALJ found that the claimant’s employment was terminated for reasons unrelated to the industrial injury, and that the employer would have accommodated the claimant’s physical restrictions had the claimant not been terminated for reasons unrelated to the industrial injury. Under these circumstances, the ALJ determined that the respondents are not liable for temporary disability benefits between November 1, 1995 and February 4, 1997.
On review the claimant contends, inter alia, that the ALJ’s denial of temporary disability benefits is contrary to the applicable law. In support, the claimant relies upon our conclusions in Carrillo v. Farmington PM Group, W.C. No. 3-111-178
(August 26, 1997), and Bernard v. Current Inc., W.C. No. 4-213-664
(October 6, 1997). We perceive no basis to disturb the ALJ’s order.
To receive temporary disability benefits the claimant must prove a causal connection between the industrial injury and the subsequent temporary loss of wages. Specifically, the claimant must prove that the industrial injury caused a disability, and that the disability resulted in more than 3 days of lost time from work. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Once the requisite causal connection is established the claimant is entitled to temporary disability benefits until the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 1997. Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). Insofar as pertinent, § 8-42-105(3)(a) provides that temporary disability benefits terminate at MMI. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). This is true because a claimant’s disability is “permanent” and no longer “temporary” at the time of MMI.
In Bernard we concluded that MMI is not divisible, and that MMI does not terminate temporary disability benefits unless the claimant is at MMI for all the compensable components of the industrial injury. In Carrillo we held that when a claimant suffers a worsening of condition after MMI, and is no longer at MMI, the claimant’s medical restrictions are again “temporary.” Therefore, we concluded that the rationale for precluding a claimant from receiving temporary disability benefits after MMI no longer exists where the claimant suffers a worsening of condition and is no longer at MMI.
However, in City of Colorado Springs v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1893, November 13, 1997) (Ballinger), the court held that a worsening of a condition after MMI does not entitle the claimant to additional temporary total disability benefits “unless the worsened condition caused an additional temporary loss of wages.” 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. However, no additional medical restrictions were imposed on account of the shoulder injury.
The Ballinger court concluded that the claimant was not entitled to further temporary disability benefits following the shoulder injury because the shoulder injury “caused no greater impact upon the claimant’s temporary work capacity than he originally sustained as a result of the injury to his back.” (Emphasis in original). Therefore, the court concluded that as a matter of law that the claimant failed to prove an entitlement to further temporary disability benefits.
We are bound by published decisions of the Court of Appeals. C.A.R. 35(f). Consequently, unless and until reversed, we must adhere to the court’s conclusions in Ballinger. It follows tha Carrillo does not support the requested relief.
However, we do not view our holding in Bernard as inconsistent with Ballinger. The claimant in Bernard suffered a compensable back injury which precluded him from performing his regular employment, and therefore, was awarded temporary disability benefits. Before reaching MMI for the back injury the claimant developed psychological impairment secondary to the back injury. Consequently, unlike Ballinger, the Bernard case did not involve a worsening of condition after MMI. See also Sandoval v. Denver Housing Authority, W.C. No. 4-268-820 (December 4, 1997)
Here, the ALJ determined that the claimant remained at MMI for the shoulder injury despite the onset of psychological problems and the need for treatment of depression. Further, the ALJ was not persuaded that the depression resulted in any wage loss beyond the wage loss resulting from the shoulder injury. These findings reflect his determination that the shoulder injury caused no greater impact on the claimant’s inability to perform his regular employment than she originally sustained as a result of the shoulder injury.
There is no significant distinction between the facts i Ballinger and the facts of this case as determined by the ALJ. Consequently, Ballinger compels the conclusion that, as a matter of law, the claimant failed to prove an entitlement to temporary total disability benefits after October 3, 1995.
In reaching this conclusion, we reject the claimant’s contention that the ALJ “impliedly required” her to produce the opinion of a treating physician to establish that the depression was disabling. As argued by the claimant, Lymburn v. Symbios Logic, ___ P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997), holds that the claimant need not produce evidence of medical restrictions to establish an initial claim for disability. However, Lymburn was decided prior to the ALJ’s order, and in the absence of clear evidence to the contrary we must presume that the ALJ considered and correctly applied the law. See Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977); Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985).
The ALJ’s order does not contain any explicit statement to indicate that the claimant was required to present the opinion of the attending physician to prove a disability from the depression. Nor did the ALJ find that the claimant could not prove a disabling psychological injury in the absence of medical evidence. See also, Summary Order November 14, 1997.
Rather, as we read the ALJ’s order, he was persuaded by Dr. Winkler’s opinion that the depression was not disabling.
Moreover, we recognize the claimant’s testimony that she was unable to work due to symptoms of depression. However, the ALJ was not required to credit the claimant’s testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Nor was the ALJ required to expressly cite her testimony before rejecting it as unpersuasive. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Consequently, we are not persuaded by the claimant’s bald assertion that the ALJ erroneously applied the law.
In view of this disposition we need not reach the claimant’s remaining arguments. Therefore, we do not consider the claimant’s argument that the ALJ misapplied PDM Molding, Inc. v. Stanberg supra, in considering the availability of light duty employment and the claimant’s “fault” for the 1994 employment separation as evidence which supports the denial of benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 30, 1998 to the following parties:
Ruby Saenz, 148 1955 Lane, Delta, CO 81416
Russell Stover Candies, Inc., 2200 Stover Ave., Montrose, CO 81401-4848
TIG Insurance Company, Hartford Ins. Group, P.O. Box 22815, Denver, CO 80222
John Connell, Esq., 1675 Larimer, Ste. 710, Denver, CO 80202 (For the Respondents)
Robert E. Krute, Esq., P.O. Box 1389, Montrose, CO 81402 (For the Claimant)
BY: _______________________