The Colorado Court of Appeals issued its opinion in Loofbourrow v. Industrial Claims Appeals Office on October 13, 2011.
Workers’ Compensation—Temporary Total Disability Benefits.
In a matter of first impression, the Court of Appeals addressed whether a claimant who did not challenge a determination that she had reached maximum medical improvement (MMI) of her work-related injury in an open case could obtain temporary total disability (TTD) benefits where she has experienced a worsening of her original injury. The Court concluded, under the circumstances presented, she could.
Claimant sought review of part of the final order entered by the Industrial Claims Appeals Office (Panel) that set aside the administrative law judge’s (ALJ) award of TTD benefits. Harman-Bergstedt, Inc. and its insurer, Zurich American Insurance Company (collectively, employer), cross-petitioned for review, asking to set aside the Panel’s order insofar as it affirmed the ALJ’s determinations as to compensability, transfer of the right of selection to claimant, and the calculation of claimant’s average weekly wage. The order was affirmed in part and set aside in part, and the case was remanded with directions.
In November 2008, claimant, a manager of a fast-food restaurant, developed back problems after an incident in which the cook walked off the job and claimant was left alone to perform all the store functions. Employer sent her to an authorized treating physician (ATP), who diagnosed her with back strain. The ATP imposed work restrictions and treated her with injections and physical therapy that cured and relieved her symptoms. In December 2008, the ATP placed claimant at MMI with no permanent medical impairment and discharged her from care. Because claimant had lost no time from work, employer did not file either a general admission of liability or a final admission of liability (FAL).
Claimant experienced renewed pain in March 2009. Her personal physician ordered an MRI, which showed a bulging disc and a small annular tear. He prescribed an injection, which she received in June 2009.
In August 2009, claimant experienced worse back pain and went to the emergency room. Her personal physician then placed her on medications and told her she could no longer work. Claimant reported her symptoms to employer. In October 2009, when employer had not provided treatment with the original ATP, claimant filed an application for hearing. Employer did not provide medical care until January 2010 and claimant continued to treat with her personal physician and remained off work.
The ALJ determined claimant had proved she sustained a compensable injury to her lower back and suffered a subsequent worsening of that condition. Because employer had failed to tender medical care, the ALJ concluded the right to select a physician passed to claimant. The ALJ awarded claimant TTD benefits as of the date she stopped working.
On review, the Panel upheld the ALJ’s determinations as to compensability, right of selection, and calculation of claimant’s average weekly wage (AWW). However, because claimant had been placed at MMI in December 2008 with no permanent impairment, it set aside the ALJ’s award of TTD benefits.
On appeal, employer argued that it was error to find claimant’s job activities caused her back condition in November 2008 and the symptoms she experienced in August 2009. The Court of Appeals disagreed, finding substantial evidence in the record to support the ALJ’s finding.
Employer also argued that the ALJ erred in finding the right to select the ATP had passed to claimant even though it had properly designated the ATP at the time of the November 2008 incident. The Court disagreed. If medical services are not timely tendered by an employer or insurer, the right of selection passes to the employee. Here, employer did not tender medical services when the injury recurred and the adjustor told claimant she did not need to return to the ATP. She was therefore free to select her treating physician.
The Court also rejected employer’s argument that the ALJ erred in calculating claimant’s AWW as of the date of the November 2008 injury because he did not take into consideration the reduction in her wages resulting from a demotion or otherwise fairly reflect her wage loss and diminished earning capacity. The default date of AWW determination is the wage on the date of the accident. The other method, referred to as the “discretionary exception,” applies when the default date will not fairly compute the employee’s AWW. The latter method is discretionary and the ALJ’s choice of method will not be interfered with unless it is beyond the bounds of reason. The Panel and the Court found that the ALJ’s use of the default method did not exceed the bounds of reason.
Claimant argued that the Panel erred by determining she was not entitled to TTD benefits despite having demonstrated a worsening of her condition. The Court agreed and reinstated the ALJ’s award of TTD benefits. An ATP’s determination as to MMI and medical impairment cannot be disputed in the absence of a division-sponsored independent medical examination (DIME). However, under CRS § 8-42-107.2(2)(a)(I)(A), the claimant’s time to select a DIME does not begin until an FAL has been mailed by the employer or its insurer. Here, employer never filed an FAL and the 2008 claim remained open. In addition, claimant’s condition worsened and caused her to suffer a wage loss not previously experienced. Because the claim remained open, the previous finding of MMI did not foreclose this later finding that the condition had worsened.