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City of Colorado Springs v. Industrial Claim Appeals Office11/13/1997
Division II
ORDER SET ASIDE AND CAUSE REMANDED WITH DIRECTIONS
Davidson and Pierce, JJ., concur
The City of Colorado Springs, a self-insured employer, (employer) seeks review of a final order of the Industrial Claim Appeals Office (Panel) upholding the award of temporary total disability (TTD) benefits to Harold Ballinger (claimant) by the Administrative Law Judge (ALJ). We set aside the order.
As the Panel noted, the basic facts relevant to the issue presented here are undisputed. Claimant sustained an admitted industrial injury to his back in October 1992. He reached maximum medical improvement (MMI) in September 1993. As part of claimant's ongoing therapy, his treating physician prescribed the use of an exercise machine. Some four months after reaching MMI, claimant's use of this machine caused him to develop tendinitis in his shoulders. Nevertheless, the ALJ found, with record support, that this latter condition did not result in any further physical restrictions and that there was no credible evidence that this condition caused any greater temporary wage loss than claimant sustained as a result of his initial back injury alone. Initially, therefore, in an order of January 19, 1995, the ALJ denied the claim for further TTD benefits.
Upon its review of this initial order, the Panel set it aside and remanded the cause to the ALJ. In doing so, it concluded that, because claimant had not reached MMI with respect to his shoulder condition, claimant had (apparently as a matter of law) sustained a further "wage loss" entitling him to additional TTD benefits.
Consonant with this Conclusion, the ALJ, upon remand, determined that claimant was entitled to receive TTD benefits, recommencing as of the date of his second injury . The Panel affirmed this award, and the employer appeals from that affirming order.
The employer argues that claimant is not entitled to further TTD benefits because he failed to demonstrate any actual temporary loss of wages caused by the shoulder injury . We agree.
The purpose of TTD benefits awardable under Section8-42-105, C.R.S. 1997, is to compensate for and protect against the actual temporary wage loss attributable to an industrial injury . Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo. App. 1994); see also Lunsford v. Sawatsky, 780 P.2d 76 (Colo. App. 1989).
In contrast, it has long been recognized that, once a claimant's condition has stabilized and no further physical improvement can be anticipated, i.e., the claimant has reached MMI, any temporary wage loss ceases. At that point, if the claimant is still unable to return to the previous normal work, an actual wage loss may, of course, continue to occur. However, that continuing loss is now permanent and is to be compensated by the claimant's receipt of permanent benefits under Section8-42-107, C.R.S. 1997, not by the continued payment of TTD benefits under Section8-42-105. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995) (present statute's reference to MMI merely incorporates long-standing concept used to determine when temporary disability ends and permanent disability starts); Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo. App. 1983).
Further, even if the claimant's condition has not stabilized, so that the present condition is not permanent, if claimant is able to return to work and is, therefore, no longer suffering a temporary wage loss as a result of the injury , entitlement to TTD benefits also ceases at that time. Safeway Stores, Inc. v. Husson, 732 P.2d 1244 (Colo. App. 1986).
The present statute incorporates all of these concepts.
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