321 P.3d 548
Colo. Ct. App.2011Background
- Claimant developed back problems in November 2008 after being left to manage the store alone.
- An authorized treating physician placed claimant at maximum medical improvement (MMI) with no permanent impairment in December 2008, and employer did not file final admission of liability.
- Claimant experienced worsening symptoms in August 2009; her personal physician treated her and she remained off work under medical restrictions.
- ALJ found compensable injury in 2008 with a worsening in 2009 and awarded temporary total disability (TTD) benefits beginning when she stopped working; AWW calculated from November 2008 wages.
- Panel affirmed compensability and right of selection but reversed the TTD award on the theory claimant remained at MMI since no new medical determination of non-MM I was made as of August 2009.
- This case addresses whether TTD can be reinstated post-MMI in an open claim when there is a proven worsening related to the original injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compensability of the 2009 symptoms | Loofbourrow proved a work-related worsening of the 2008 injury. | Employer's expert opinion did not support compensability; the 2009 symptoms were not causally connected. | Compensability supported by substantial evidence; injuries found to be work-related. |
| Right to select treatment provider | Right to select physician passed to claimant when timely medical treatment was not tendered. | Employer correctly designated the ATP at the time of the November 2008 incident and claimant could not override that selection. | Right to select passed to claimant; claimant could seek treatment with her personal physician. |
| Calculation of Average Weekly Wage (AWW) | AWW should reflect wage loss from the demotion and overall earning capacity changes. | AWW based on 2008 wages was reasonable under the default provision. | ALJ within discretion to base AWW on 2008 wages under the default provision. |
| TTD benefits after MMI finding | Open claim allows post-MMI worsening to support TTD; the MMI finding should not bar compensation. | TTD terminates at MMI and cannot be revived without a DIME challenge to MMI. | TTD reinstated; because MMI was not challenged under DIME procedures in an open claim, post-MMI worsening supports TTD. |
Key Cases Cited
- Bunch v. Indus. Claim Appeals Office, 148 P.3d 381 (Colo. App. 2006) (right to select physician when timely treatment not tendered)
- Yeck v. Indus. Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999) (employer may retain right to select; timely tendered treatment affects rights)
- Andrade v. Indus. Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005) (initial right of selection passes to employee when medical services are not timely tendered)
- Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777 (Colo. 2010) (default vs discretionary method for calculating AWW)
- Paint Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429 (Colo. App. 2010) (TTD vs permanent disability timing after MMI)
- Story v. Indus. Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995) (DIME procedures and challenges to MMI findings; change of physician context)
- Heinicke v. Indus. Claim Appeals Office, 197 P.3d 220 (Colo. App. 2008) (substantial evidence standard for causation and change in condition)
- Lutz v. Indus. Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000) (burden to prove entitlement by preponderance of the evidence)
- Cabela v. Indus. Claim Appeals Office, 198 P.3d 1277 (Colo. App. 2008) (standard for reversing ALJ credibility findings and compensability determinations)