W.C. No. 4-203-021Industrial Claim Appeals Office.
August 2, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ denied the claim for additional temporary disability benefits. We affirm.
In 1994, the claimant suffered admitted injuries to his ribs, left wrist and shoulders bilaterally. In March 1997 Dr. Davis placed the claimant at maximum medical improvement (MMI). Thereafter, the respondents admitted liability for permanent partial disability benefits and future medical benefits.
In August 1997, Dr. Davis diagnosed bilateral carpal tunnel syndrome (CTS). The respondents admitted the CTS was a natural consequence of the industrial injury and provided medical benefits. The claimant then requested temporary total disability benefits commencing June 16, 1999, the date he agreed to undergo surgery for the CTS.
The applicable law is undisputed. Section 8-42-105(3)(a), C.R.S. 2000, terminates temporary disability benefits when the claimant reaches MMI. 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, 954 P.2d 637 (Colo.App. 1997) (Ballinger). In other words the worsened condition must cause an additional wage loss.
In denying the claimant’s request for temporary disability benefits on account of the CTS, the ALJ found Dr. Davis did not alter the claimant’s permanent medical restrictions after July 1997. The ALJ also found the CTS did not contribute to the claimant’s wage loss. In particular, the ALJ found that in 1996 the claimant retired and began receiving a retirement pension from the respondent-employer. The ALJ further found the claimant has not formally applied for any work since 1996. Consequently the ALJ found the claimant failed to establish a causal link between his wage loss and the CTS.
On review, the claimant relies on Dr. Davis’s testimony that appropriate restrictions as of July 1997 for the CTS included no repetitive movements with the hands, and no forceful gripping with the hands. Based upon this evidence the claimant contends he proved the worsened condition resulted in additional medical restrictions which were not present at the time of MMI. Further, the claimant relies on his testimony that he was offered employment he was unable to accept due to the CTS. Therefore, the claimant argues the ALJ erroneously determined he failed to prove his entitlement to additional temporary disability benefits. We disagree.
It is the claimant’s burden to establish his entitlement to temporary disability benefits due to a worsened condition. The claimant must not only prove that the worsened condition has caused additional medical restrictions, but also that the restrictions caused a temporary wage loss. City of Colorado Springs v. Industrial Claim Appeals Office supra; Walsh Healthcare Center v. Industrial Claim Appeals Office, (Colo.App. No. 98CA1539, May 27, 1999) (not selected for publication). The question of whether the claimant has sustained his burden of proof is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2000 Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Insofar as the record is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine the inferences to be drawn and we may not substitute our judgment for that of the ALJ in this regard. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
The claimant’s testimony is subject to conflicting inferences. The claimant stated he has received job offers he has been unable to accept due to the CTS. (Smith depo. p. 14). He added that were it not for the CTS he would go back to work. (Smith depo. p. 26). However, he admitted he has not worked since he was laid off by the respondent-employer in March 1996. Instead he receives a retirement pension and Social Security Disability Insurance benefits due to the shoulder injury and an unrelated pulmonary problem. (Smith depo. pp. 14, 16). The claimant also admitted he did not apply for work after the layoff because he felt physically unable to do a job. (Smith depo. pp. 17, 23, 27). For the period May 2000 to November 2000, the claimant stated his inability to work was attributable to surgery for a non-industrial back problem. (Smith depo. p. 18).
Dr. Davis stated that medically appropriate restrictions for the claimant as of July 1997 included no lifting of more than 10 pounds overhead or more than 50 pounds generally on account of the shoulder injuries and “no work involving repeated impact to the hands, or forceful grasping with the hands” due to the CTS. (David depo. November 16, 2000, p. 11). However, Dr. Davis admitted he did not actually impose any restrictions relative to the CTS in July 1997 because the claimant wasn’t working. He added that he didn’t change the claimant’s restrictions at any time after the claimant retired. (Davis depo. November 16, 2000, p. 15). The claimant conceded there was no change in restrictions. (Smith depo. pp. 22, 23).
Furthermore, in his medical reports dated March 27, 1997 through June 1999, Dr. Davis consistently reported the claimant’s work status as “unable to return to work.” Based upon this evidence, the ALJ reasonably inferred that the CTS did not cause a greater impact on the claimant’s temporary earning capacity than existed in March 1997 when the claimant was placed at MMI. Moreover, the ALJ’s determination supports the denial of temporary disability benefits. City of Colorado Springs v. Industrial Claim Appeals Office, supra.
The claimant’s further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 24, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 2, 2001 to the following parties:
Stephen Smith, P. O. Box 207, Lynn, AR 72440
Basin Resources, Inc., 3800 County Road 63.9, Trinidad, CO 81082
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Timothy L. Nemechek, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy