Loofbourrow v. Industrial Claims Appeals Office of the State of Colorado, No. 10CA2176 (Colo. Ct. App. 10/13/11).
Ruling: The Colorado Court of Appeals held that a manager was entitled to temporary total disability benefits after she reached maximum medical improvement but experienced a worsening of her injury.
What it means: In Colorado, a worker who did not challenge a determination that she reached MMI of her work-related injury in an open case may be able to obtain TTD benefits when she experienced a worsening of her original injury.
A manager of a fast-food restaurant developed back problems after a cook walked off the job and she had to perform all store functions. The restaurant sent her to an authorized treating physician who diagnosed her with a back strain and treated her with injections and physical therapy. The next month, the physician placed her at MMI with no permanent medical impairment and discharged her from care. Since the manager did not lose time from work, the restaurant did not file a final admission of liability. Later, the manager began to experience pain again. Her personal physician placed her on medication and told her she could no longer work. She sought benefits. In a case of first impression, the Colorado Court of Appeals held that the manager was entitled to TTD benefits.
The court found that the manager proved that she was entitled to compensation for the worsening of her condition. The court also found that the manager had the right to select her treating physician, noting that the authorized treating physician discharged her from care after placing her on MMI.
The restaurant did not dispute that it did not file a final admission of liability and the claim remained open. This also meant that the manager was not able to use the division-sponsored independent medical examination and selection procedures to challenge the MMI determination.
The court said that although an MMI determination becomes binding if not challenged, an assertion of a post-MMI worsening of a condition was not precluded in an open claim, particularly where the change would have been sufficient to support a petition to reopen if the claim had been closed. The court concluded that she was entitled to TTD benefits because her condition resulted in an increase in her physical restrictions and caused her to suffer a wage loss.
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November 14, 2011
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