W.C. No. 4-371-501Industrial Claim Appeals Office.
June 9, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Atencio (ALJ) which denied his claim for temporary total and temporary partial disability benefits subsequent to February 16, 1998. The claimant contends the ALJ failed to determine whether the post-separation wage loss was to some degree caused by the industrial injury. We set aside the ALJ’s order and remand the matter for entry of a new order.
The parties stipulated that the claimant sustained a compensable back injury on December 31, 1997. The claimant returned to work on February 2, 1998, although he testified he was unable to perform all the duties of his regular employment as a ceramic tile warranty specialist.
The ALJ found that the claimant was “fired for cause on February 16” because he took property from a job site. Citing PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ concluded that the claimant was not entitled to temporary total or temporary partial disability benefits subsequent to February 16.
On review, the claimant contends the ALJ failed to determine whether his wage loss subsequent to February 16 was “to some degree” caused by the industrial injury. The claimant argues that he presented evidence that lifting restrictions caused by the industrial injury limited his opportunities for obtaining employment following the separation. We agree, and therefore, remand for entry of a new order.
In PDM Molding, Inc. v. Stanberg, supra, the court held that a temporarily disabled claimant who is at fault for termination from post-injury employment is not barred from receiving temporary disability benefits if he proves that the subsequent wage loss is “to some degree” caused by the industrial injury. 898 P.2d at 548. The claimant need not conduct a post-separation job search in order to satisfy the burden of proof, but evidence of an unsuccessful job search is relevant. Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
Here, the claimant testified that he was under lifting restrictions at the time he was terminated on February 16. Further, the claimant stated that he attempted to obtain alternative employment, but was unsuccessful because of his injury-related physical restrictions. It was not until March 23, 1998, that the claimant obtained “supervisory” work within his restrictions. (Tr. pp. 27-31).
The ALJ failed to make any findings of fact determining whether the claimant’s testimony was credible, and whether the wage loss after February 16 was to some degree caused by the industrial injury. Consequently, the ALJ’s findings are insufficient to support the denial of benefits, and the matter must the remanded for entry of a new order determining the cause or causes of the claimant’s wage loss after February 16, consistent with PDM Molding, Inc. v. Stanberg, supra; See §8-43-301(8), C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 16, 1998, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed June 9, 1999 to the following parties:
Denny D. Dickinson, 9995 East Harvard Ave., Apt. R-292, Denver, CO 80231
Flooring Design Associates Inc., 3770 Paris St., Ste. 1, Denver, CO 80239-3331
Truck Insurance Exchange, P.O. Box 378230, Denver, CO 80237-8230
Lawrence D. Blackman, Esq., Lynda S. Newbold, Esq., 1515 Arapahoe St., T-3 Ste. 600, Denver, CO 80202 (For Claimant)
Christian M. Lind, Esq., Orchard Place II, Ste. 106, 5975 Greenwood Plaza Blvd., Greenwood Village, CO 80111 (For Respondents)
BY: A. Pendroy