W.C. No. 4-456-987Industrial Claim Appeals Office.
May 28, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) insofar as it denied a claim for temporary total disability (TTD) benefits. The claimant argues that because the ALJ found his condition worsened, and because he could not return to his preinjury employment, he is entitled to TTD benefits as a matter of law. The claimant further contends the evidence does not support the ALJ’s finding that the worsening of condition did not result in additional wage loss. We affirm the ALJ’s order.
The ALJ’s findings of fact may be summarized as follows. The claimant sustained a compensable back injury in April 2000 while performing heavy lifting. The injury was diagnosed as a compression fracture of L1. The claimant was also found to have a ruptured disc at L4-5. On March 30, 2001, a treating physician, Dr. Youseff, placed the claimant at maximum medical improvement (MMI). Dr. Youseff referred the claimant to Dr. Jernigan for an impairment rating, and Dr. Jernigan assessed a 28 percent whole person impairment rating. This rating was apparently based on the compression fracture and the disc injury. At the time of the rating the claimant reported “severe chronic pain in his back” and that he needed to change positions every 30 to 40 minutes. The respondents filed a final Admission of Liability based on Dr. Jernigan’s impairment rating.
In February 2002 the claimant filed a petition to reopen based on a worsened condition. At the hearing, the claimant testified his back pain has gradually increased and he is more limited in movement and his ability to sit and stand than he was at the time he reached MMI.
The ALJ found the claimant’s condition worsened as evidenced by the increasing back pain and the recommendation for an MRI designed to isolate the location of the pain. Thus, the ALJ awarded medical benefits for treatment designed to improve the claimant’s condition.
However, the ALJ denied the request for TTD benefits. The ALJ found the claimant was experiencing severe back pain on the date of MMI which “affected his ability to earn income since the date of MMI.” Indeed, the only work which the claimant performed after MMI was light maintenance work at a campground. Under these circumstances, the ALJ found the evidence fails to demonstrate the claimant’s “worsened condition has caused additional physical restrictions that have caused the claimant to sustain additional wage loss.”
On review, the claimant advances two arguments. First, the claimant argues the ALJ’s order represents a misapplication of the law. The claimant asserts that once the ALJ determined the condition worsened and the claimant was no longer at MMI, he was automatically entitled to TTD benefits because he could not perform his preinjury employment. Alternatively, the claimant argues the ALJ’s finding that the worsening of condition did not cause additional wage loss is unsupported by the evidence. We find no error.
The claimant’s assertion notwithstanding, the ALJ’s finding that the claimant’s condition worsened and that he needed additional medical treatment to return to MMI does not automatically entitle the claimant to TTD benefits. This is true regardless of whether the claimant could perform the preinjury employment.
Indeed, the claimant’s legal theory was rejected by the Court of Appeals in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). The court held that once a claimant reaches MMI for an industrial injury a subsequent worsening of condition does not necessarily entitle the claimant to an award of TTD, even if the claimant is unable to return to the preinjury employment. To obtain additional TTD benefits the claimant must prove that the worsening resulted in additional physical restrictions which, in turn, caused impairment of the claimant’s residual earning capacity beyond that which existed at MMI. If the claimant fails to satisfy these elements of proof, it is presumed the impairment of the claimant’s earning capacity remains permanent. Stineman v. La Villa Grande Care Center, W.C. No. 3-106-730 (December 14, 1998); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
Further, the evidence supports the denial of TTD benefits. The question of whether the claimant proved that any increase in restrictions caused additional impairment of the claimant’s capacity to earn wages was one of fact for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Lively v. Digital Equipment Corp., W.C. No. 4-330-619 (June 14, 2002). Because the issue is factual, we must uphold the ALJ’s pertinent 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 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 credited the claimant’s testimony that the worsening of condition caused some additional pain and restricted motion. However, in light of the severity of the claimant’s symptoms at MMI (as shown by Dr. Jernigan’s April 17, 2001 report), and evidence the claimant performed only one light duty job after reaching MMI, the ALJ was not persuaded the worsening led to any greater impairment of the claimant’s earning capacity than already existed on the date of MMI. Because the ALJ’s order constitutes a plausible interpretation of the evidence, we may not interfere with it. Cf. Sanchez v. Oliver, W.C. No. 3-103-338 (August 12, 1998). The mere fact some evidence might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Insofar as the claimant makes other arguments, they are factual in nature and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 24, 2002, 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. 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 28, 2003 to the following parties:
Wiley L. Seale, 446 Bluejay Circle, Pagosa Springs, CO 81147-8910
David J. Brown d/b/a Bootjack Management Company, 12500 E. Highway 160, #2, Pagosa Springs, CO 81147
Legal Department, Pinnacol Assurance — Interagency Mail
Robert C. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Merrily S. Archer, Esq., and Thomas M. Stern, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
By: A. Hurtado