W.C. No. 4-794-217.Industrial Claim Appeals Office.
July 23, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 19, 2010 that denied the claimant’s claim for temporary total disability benefits. We affirm.
A hearing was held on the sole issue of whether the claimant was entitled to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On July 8, 2008, the claimant injured his arms using a jackhammer while working for the employer. He was examined by Jennifer Wilson, a nurse who worked for the employer. She diagnosed the claimant as having suffered a strain and recommended that he change jobs and follow up if the pain continued. He was laid off because of a lack of work on November 12, 2008. The claimant next sought treatment on January 17, 2009, when the claimant consulted Dr. Bradley and complained of pain in his hands, wrist, and right shoulder. Dr. Bradley diagnosed a chronic strain of both wrists and stated that the claimant could perform his regular work.
The ALJ also entered a factual finding that Dr. Bradley testified by deposition prior to the hearing and opined that he “likely” would have assigned restrictions as of the date of the claimant’s termination from work, but that they would have been “preventative.” However the ALJ also found that Dr. Bradley stated that the claimant did not need restrictions resulting from the July 8th injury. The ALJ also found that Dr. Bradley stated that he would have restricted the claimant from using jackhammers.
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Based upon his factual findings, the ALJ concluded that the claimant failed to carry his burden of showing that he was temporarily disabled as a result of his compensable injury. He therefore denied the claim for temporary total disability benefits.
The claimant appealed and essentially argues that the factual record compels the conclusion that the claimant was entitled to temporary total disability benefits at the time of his termination from employment or, if not then, at the time Dr. Bradley stated that he would have restricted him from using a jackhammer. However, in our view, the ALJ weighed the evidence and resolved internal inconsistencies in Dr. Bradley’s testimony, concluding that the claimant was not entitled to temporary total disability benefits. We perceive no reversible error in the ALJ’s order.
To prove entitlement to TTD the claimant must prove the industrial injury caused a “disability.” § 8-42-103(1), C.R.S.; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term “disability,” as used in workers’ compensation cases, connotes two elements. The first is “medical incapacity” evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant’s inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of “disability” may be evidenced by showing a complete inability to work, or by physical restrictions which impair the claimant’s ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App. 1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We must uphold the ALJ’s determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003).
Here, the ALJ relied largely, although not exclusively, on Dr. Bradley’s opinions in concluding that the claimant failed to prove entitlement to temporary total disability benefits. It is true that Dr. Bradley’s opinions are sometimes inconsistent, and even contradictory. For example, as the claimant points out, Dr. Bradley stated that “obviously” if some activity “percussive and repetitive is aggravating his injury” he would have recommended that the claimant avoid that activity until the symptoms resolved. Deposition of J. Douglas Bradley, M.D. at 9 (December 7, 2009) (hereafter Bradley Depo.) Similarly, when asked whether he would have restricted the claimant
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from using a jackhammer, the doctor replied that he “definitely” would have done so. Bradley Depo. at 24. However, the ALJ also found that the claimant was “never given work restrictions” on account of his injury. Order at 4, ¶ 2. He found that Dr. Bradley indicated in January 2009 that the claimant was able to perform full duty work, and that no restrictions should be assigned the claimant either at the time of his termination from employment or at the time of Dr. Bradley’s evaluation of the claimant. In this regard, Dr. Bradley stated in his deposition that “there would not be any reason to give him any restrictions.” Bradley Depo. at 25.
As noted, the factual record is inconsistent concerning whether the claimant was restricted from performing his regular work. However, as we read his order, it is evident that the ALJ credited the evidence that the claimant had no restrictions. Because the findings to that effect are supported by substantial, albeit conflicting, evidence, we may not disturb them. And those findings support the conclusion that the claimant failed to carry his burden of showing entitlement to temporary total disability benefits. We note that the court of appeals has remarked that inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers’ compensation claims but that it remains the ALJ’s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda
(Colo. App. No. 92CA1576, July 1, 1993) (not selected for publication). In this regard, the ALJ was free to credit those portions of the conflicting testimony and evidence that he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (to the extent testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony).
Finally, we agree with the claimant’s argument that if because of his injury he were working in a modified job at the time of his layoff for lack of work he would have been entitled to temporary total disability benefits at that time. However, the ALJ did not enter a factual finding to that effect and we have located nothing in the record that would have compelled him to do so. The claimant did not testify at the hearing and the ALJ’s findings of fact were entered pursuant to certain stipulations by the parties. The parties apparently did not stipulate that the claimant was working in a modified position at the time of his layoff and, as noted, the ALJ did not find that he was. It is true that the ALJ found that the nurse who initially examined the claimant “recommended” a change in job duties, but the ALJ also found that she did not impose any work restrictions at that time. In fact, the ALJ inferred from the physical therapy note dated October 21, 2008 that the claimant was performing his regular job, which included operating a jackhammer, at the time of his layoff. See Findings of Fact, Conclusions of Law, and Order at 4, ¶ 3. Under these circumstances we are unpersuaded by the claimant’s argument that his entitlement to temporary total disability benefits derives from his inability to perform his regular job
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and his resultant performance of modified work at the time of his layoff. The ALJ’s order and the record do not support that argument.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 19, 2010, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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ARMANDO S. VIGIL, PUEBLO, CO, (Claimant).
BECHTEL, 45825 E HWY 96, PUEBLO, CO, (Employer).
AIG, Attn: REBECCA LYNOTT, C/O: AIU HOLDINGS, INC (NEW ORLEANS OFFICE), SHAWNEE MISSION, KS, (Insurer).
STEVEN U. MULLENS, P.C., Attn: STEVEN U. MULLENS, ESQ., PUEBLO, CO, (For Claimant).
SENTER GOLDFARB RICE, L.L.C., Attn: WILLIAM M STERCK, ESQ./SEAN ELLIOTT, ESQ., DENVER, CO, (For Respondents).