Opinion
W.C. No. 4-376-276
July 28, 2003
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ Stuber) which denied a claim for temporary partial disability (TPD) benefits. The claimant contends the ALJ improperly evaluated the claimant's loss of earning capacity, and that the evidence compelled the ALJ to award benefits. We affirm.
In March 1998 the claimant sustained a compensable occupational disease involving both upper extremities. The claimant underwent bilateral carpal tunnel surgeries and was placed at maximum medical improvement (MMI) on March 8, 1999. The treating physician restricted her to the light-sedentary work category and she was prohibited from lifting more than 18 pounds. The respondents filed a final admission of liability admitting for permanent partial disability benefits based on impairment of both upper extremities.
Subsequent to reaching MMI, and perhaps before, the claimant began to develop symptoms of depression. In December 1999 she consulted a psychiatrist, Dr. Moffett, who opined she was totally disabled by the depression. Nevertheless in December 1999, the claimant obtained employment at Carmel Assisted Living Center as a "coach" to mentally and physically challenged individuals. Initially, the claimant worked 20 to 25 hours per week earning $10 per hour, and later received a raise to $10.50 per hour. In 2002 the claimant increased her work to 32 hours per week.
The claimant sought to reopen her case based on a worsened condition. The matter proceeded to hearing before ALJ Wheelock in September 2001. ALJ Wheelock found the claimant's condition worsened as evidenced by the development of depression, and determined that Dr. Brooke and psychologist Ricci, Ph.D. (Dr. Ricci) were authorized to provide treatment.
In January 2003, the matter proceeded to hearing before ALJ Stuber concerning the claim for temporary partial disability benefits commencing in December 1999. The claimant and Dr. Ricci both testified that the effects of the depression and ongoing pain limited the claimant's ability to work as a coach at the assisted living center. However, relying on principles set forth in City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997), the ALJ found the claimant failed to prove the depression caused any increased disability beyond that which existed at the time of MMI. In support of this determination the ALJ noted that, despite Dr. Moffett's opinion that the claimant was totally disabled, she commenced work at the living center in December 1999. Further, the ALJ found that Dr. Ricci never imposed any restriction on the number of hours the claimant could work. Finally, the ALJ noted the claimant's attempts to increase her client base and hours, and the actual increase in hours which occurred in 2002.
I.
On review the claimant contends ALJ Stuber erred in applying the principles discussed in City of Colorado Springs because this claim involves TPD benefits, not temporary total disability (TTD) benefits. Further, the claimant argues ALJ Stuber erred in considering the number of hours worked by the claimant and the absence of medical restrictions because these factors do not accurately reflect the impairment of the claimant's earning capacity. We are not persuaded.
First, we perceive no error in ALJ Stuber's decision to apply the principles set forth in City of Colorado Springs v. Industrial Claim Appeals Office, supra. In that case, which involved a claim for TTD benefits, the court held that in order for the claimant to receive additional TTD benefits after reaching MMI the claimant must show that the worsened condition caused additional physical (or presumably mental) restriction resulting in greater impairment of the claimant's " temporary work capability" than existed at the time of MMI. (Emphasis in original, 954 P.2d at 640). The rationale for this holding is that once the claimant reaches MMI, any impairment of earning capacity is permanent and is compensated by permanent disability benefits. In order for impairment of earning capacity to again be "temporary," the claimant must show the effects of the worsened condition have caused an impairment of earning capacity beyond that compensated by the permanent disability benefits.
Regardless of whether the claimant seeks TTD or TPD benefits after reaching MMI, the reasoning of the court in City of Colorado Springs is applicable. The difference between TTD and TPD is the degree of the claimant's wage loss, not the underlying theoretical basis for payment of these benefits. Section 8-42-105(1), C.R.S. 2002 (TTD benefits based on sixty-six and two-thirds percent of the claimant's average weekly wage); § 8-42-106(1), C.R.S. 2002 (TPD benefits based on sixty-six and two-thirds percent of the difference between the pre-injury and post-injury average weekly wages). Despite the differing methods of calculation, both types of benefits are compensation for temporary impairment of earning capacity during the healing period before MMI. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989); Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo.App. 1986); Yates v. LaFarge Corp., W.C. No. 4-527-450 (July 3, 2003) (purpose of all temporary disability benefits, including TPD benefits, is compensation for lost earning capacity).
Having determined that City of Colorado Springs is applicable, it does not follow that the claimant's arguments are disposed of. As noted, the claimant must show that the additional restrictions caused by the worsening diminished the claimant's temporary "earning capability." We have interpreted this rule as requiring the claimant to show a reduction in "earning capacity," not merely a reduction of post-MMI earnings. Thus, even if the claimant did not work after MMI, a subsequent worsening of condition might entitle the claimant to reinstatement of TTD benefits if the ALJ was able to find that the claimant's post-MMI earning capacity was reduced by the additional restrictions caused by the worsening. Lively v. Digital Equipment Corp., W.C. No. 4-330-619 (June 14, 2002); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
Thus, the ALJ might have applied an improper legal standard if he had held the claimant's ability to work a given number of hours automatically disqualified her from receiving TPD benefits. Indeed, reduced earning capacity might be proven if the claimant was able to work the same number of hours that she worked before the injury, but the restrictions resulting from the worsened condition limited her to jobs which paid a lower wage. Cf. Ski Depot Rentals, Inc. v. Industrial Claim Appeals Office, 714 P.2d 516 (Colo.App. 1985).
However, we do not understand the ALJ to have applied a formula based solely on the number of hours worked by the claimant. Rather, the ALJ determined that the claimant's successful efforts to obtain work, as well as her efforts to increase the number of hours she worked, cast doubt on the claim that the depression was impairing her earning capacity. Moreover, the ALJ relied on the absence of any restrictions imposed by the treating psychologist as evidence the depression was not impairing the claimant's capacity to earn wages.
Neither did the ALJ's improperly consider the absence of medically imposed restrictions. It is true that disability need not be proven by medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). However, it does not follow the ALJ must ignore the absence of medically imposed restrictions when determining whether the claimant met the burden of proof to establish additional restrictions which temporarily impaired the capacity to earn wages.
II.
The claimant next contends the record does not support the ALJ's finding that she failed to prove increased disability caused by the depression. The claimant cites her own testimony that the depression rendered her unable to work as much or as often as she wished. The claimant also relies on the testimony of Dr. Ricci who opined the depression impaired the claimant's capacity for work, and that he did not impose restrictions because the object of his treatment was to encourage the claimant to overcome her perceived limitations. We find no error.
The question of whether the claimant met the burden to prove the worsening of condition caused additional temporary impairment of her earning capacity, which would entitle her to TPD benefits under the formula established in § 8-42-106(1), was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, supra; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981); Lively v. Digital Equipment Corp., supra. Consequently, we must uphold the ALJ's determination 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 Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We note the ALJ is not under any obligation to credit testimony, even if it is unrebutted or uncontradicted. Further, to the extent testimony is internally inconsistent or subject to various interpretations, the ALJ may credit part of the testimony or none of it. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). Evidence not specifically mentioned in the order is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ determined the claimant failed to meet her burden of proof to show that the depression caused additional temporary impairment of earning capacity. The claimant's arguments notwithstanding, this represents a plausible inference from the record. As the ALJ found, the claimant began work at the assisted living center even as Dr. Moffett opined the depression rendered her totally disabled by depression. Moreover, the claimant received a raise based on her performance, and sought to increase her hours. The absence of any psychological restrictions on the performance of work permits the inference the claimant was able to work more hours, but chose not to. Although the claimant's and Dr. Ricci's testimony could support another result, the ALJ implicitly rejected this evidence as unpersuasive. The mere fact the evidence might have supported another result does not afford grounds for appellate relief. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The claimant asserts the result reached by the ALJ is contrary to the rule of "liberal construction" of the Act. However, the rule of liberal construction applies to the interpretation of statutes, not the ALJ's evaluation of the evidence. Section 8-43-201, C.R.S. 2002; Federal Express v. Industrial Claim Appeals Office, 51 P.3d 1107 (Colo.App. 2002).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED THAT the ALJ's order dated February 10, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
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 July 28, 2003 to the following parties:
Patsy Ann Fontecchio, 3303 N. Hancock, Lot #1, Colorado Springs, CO 80907
SR Flaks Company, 815 S. Sierra Madre St., Colorado Springs, CO 80903
Truck Insurance Exchange, 7535 E. Hampden Ave., #200, Denver, CO 80231
Stephanie J. Stevenson, Esq., 815 N. Nevada Ave., #100, Colorado Springs, CO 80903
(For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: A. Hurtado