W.C. No. 4-211-140Industrial Claim Appeals Office.
July 17, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which denied their petition to suspend temporary total disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable back injury in April 1994 and was entitled to temporary total disability benefits. While still under treatment, the claimant became pregnant in December 1994.
In a report dated February 24, 1995, the claimant’s treating physician, Dr. Schenck, stated that it would be “wise to hold consideration for maximum medical improvement until after she is [sic] delivered her baby and can be again evaluated by myself as well as a second opinion by a spine surgeon.” Dr. Schenck also stated that a determination of maximum medical improvement would be “premature.”
On September 21, 1995, the claimant was examined by Dr. Toohey upon referral from Dr. Schenck. Dr. Toohey, an orthopedic surgeon, stated that the claimant had been “unable to work for a variety of reasons including her recent pregnancy but also because she was having significant back pain which limited her lifting and functional activities.” Dr. Toohey recommended physical therapy and planned to examine the claimant in six weeks.
The respondents, relying on the unpublished case of Zanandrie v. Castle Gardens Nursing Home, (Colo.App. 92CA1406, October 7, 1993) (not selected for publication), argued that the claimant’s temporary disability benefits should be suspended during the period of time her pregnancy “delayed” the attainment of MMI. However, the ALJ rejected this argument because he found that the respondents “produced no evidence showing that Claimant’s pregnancy delayed Claimant’s recovery for any specific period of time, and that Claimant would have reached maximum medical improvement at any time previously but for the pregnancy.” Further, the ALJ stated that “it is well established that the insurer’s liability may be only severed if the evidence shows that Claimant’s disability is solely attributable to an independent intervening injury or event.”
On review, the respondents contend that the ALJ erred in finding that they presented “no evidence” that the claimant’s pregnancy delayed the attainment of MMI. The respondents contend that Dr. Schenk’s report of February 24, 1995 constitutes some evidence that the pregnancy delayed MMI. We reject this argument.
It is true that where an ALJ finds there is “no evidence” to support a particular proposition we are not at liberty to read such a finding to mean that the ALJ found there was “no credible evidence.” Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988). However, in this case, the ALJ’s order indicates that the ALJ was fully aware of the contents of Dr. Schenk’s February 24 report. (Finding of Fact 5). The ALJ merely determined that the February 24 report did not constitute any evidence that the pregnancy actually delayed the attainment of MMI for a “specific period of time.” This constitutes a plausible interpretation of the February 24 report, and therefore, we may not interfere with the ALJ’s finding. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Further, we agree with the claimant that any error involving the ALJ’s interpretation of the February 24 report is harmless. The ALJ has expressly credited Dr. Toohey’s September 21, 1995 report which indicates that the claimant’s inability to work during the disputed period of time was, to some degree, the result of the industrial injury. Under such circumstances, the claimant’s pregnancy does not constitute an intervening cause of the wage loss sufficient to nullify the claimant’s right to temporary disability benefits. PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995); Niehaus-Labbe v. Industrial Claim Appeals Office, (Colo.App. 95CA0179, July 27, 1995) (not selected for publication) (pregnancy was not intervening cause of wage loss where it precluded claimant from taking medication necessary to treat the industrial injury); Gallegos v. Owens Corning, W.C. No. 4-221-098, October 25, 1995.
The claimant requests an award of attorney fees under § 8-43-301(14), C.R.S. (1995 Cum. Supp.). This section permits an award of attorney fees if an attorney signs a petition to review which is “not well grounded in fact” or not “warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.”
Here, we conclude that an award of attorney fees is inappropriate. First, the appellate courts have not published any decision since PDM Molding, Inc. v. Stanberg which directly addresses whether, and under what circumstances, pregnancy constitutes an intervening event sufficient to deny a claimant temporary disability benefits. Further, we cannot say that the respondents’ interpretation of the ALJ’s order is so lacking in merit that it may be considered frivolous. Thus, considering the ambiguity of the law and factual findings, we will not award attorney fees. Cf., General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 13, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Michelle Valla (Mercado), 6311 Windsor Castle, Apt. D2, San Antonio, TX 78218
Inventory Auditors, 1600 N. College Ave., Ft. Collins, CO 80624-1219
Colorado Compensation Insurance Authority, Attn.: Brandee DeFalco, Esq. (Interagency Mail)
Pete McGuire, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202-5528 (For the Respondents)
Richard K. Blundell, Esq., 800 8th Ave., Ste. 202, Greeley, CO 80631 (For the Claimant)
By: _______________________