W.C. No. 4-504-184Industrial Claim Appeals Office.
June 17, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied additional temporary disability benefits. We affirm.
In February 2001, the claimant sustained bilateral cubital tunnel syndrome as a result of her employment activities in the respondent’s accounting department. The claimant’s job required her to use a computer and calculator. Due to the injury, the claimant underwent left elbow surgery on May 16, 2001. The respondent admitted liability for temporary disability benefits May 19, 2001 through May 21, 2001.
The ALJ found the claimant returned to her regular duty work on May 22, 2001, with some ergonomic changes in her work station. However, the ALJ credited the claimant’s testimony that she would have returned to her regular duties without the ergonomic changes. The claimant continued her regular employment until August 24, 2001, when she was laid off for economic reasons. The ALJ also found the claimant was released to return to work at full duty, without restrictions following various medical examinations between July 23, 2001 and September 6, 2001.
On December 3, 2001, the claimant was placed at maximum medical improvement with permanent impairment to the upper extremities. An authorized treating physician also permanently restricted the claimant from lifting over 8 pounds, and forceful or sustained gripping with the left hand.
Under these circumstances, the ALJ determined that the claimant’s entitlement to temporary total disability benefits terminated on May 22, 2001, by operation of § 8-42-105(3)(b), C.R.S. 2003. Further, the ALJ implicitly agreed with the respondent that the claimant’s temporary disability benefits also terminated by operation of § 8-42-105(3)(c), C.R.S. 2003.
Further, the ALJ was persuaded that the claimant remained capable of performing her regular employment between August 24, 2001 and December 2, 2001. In support, the ALJ determined that the claimant’s permanent medical restrictions did not preclude her from performing her preinjury occupation. Consequently, the ALJ denied the request for temporary disability benefits between August 24, 2001 and December 3, 2001.
On review, the claimant contests the ALJ’s finding that temporarily disability benefits terminated by operation of §8-42-105(3)(c). Relying on J.D. Lunsford v. Sawatsky, 780 P.2d 76
(Colo.App. 1989) and City of Aurora v. Dortch, 799 P.2d 462
(Colo.App. 1990), the claimant argues that she was temporarily disabled and the industrial impaired her opportunity to obtain employment at pre-injury wage levels following the lay off. We perceive no basis for disturbing the ALJ’s order.
To obtain an award of temporary total disability benefits, the claimant must prove a causal connection between the industrial injury and the temporary loss of wages. To do so, the claimant must prove that the industrial injury has caused a “disability,” that she left work as a result of the injury, and sustained an actual loss of wages. Section 8-42-103(1), C.R.S. 2003; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). For purposes of temporary disability benefits, a “disability” exists when the claimant is unable to fully perform the duties of her pre-injury employment. PDM Molding, Inc. v. Stanberg, supra; see also McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
Once the claimant sustains her initial burden of proof, temporary disability benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2003. PDM Molding, Inc. v. Stanberg, supra. Insofar as pertinent, § 8-42-105(3)(b) provides that temporary total disability benefits terminate when the claimant “returns to regular or modified employment, ” and §8-42-105(3)(c) terminates temporary benefits when the attending physician gives the claimant a release to return to her regular employment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
However, a temporarily disabled worker remains entitled to temporary disability benefits following an economic layoff as long as the claimant was not at fault for the layoff. J.D. Lunsford v. Sawatsky, supra, [decided under predecessor statute]. This is true because the disability from regular employment often significantly restricts the claimant from obtaining new employment. Id. at 78.
In this case, there is substantial evidence in the claimant’s testimony to support the ALJ’s finding that the claimant returned to regular employment on May 22, 2001. Therefore, the ALJ correctly determined that the claimant’s entitlement to temporary total disability benefits automatically terminated pursuant to §8-42-105(3)(b). The ALJ’s further determination that the work restrictions imposed at the time of MMI did not physically preclude the claimant from performing her regular employment between August 24 and December 3 is a plausible inference from the record, and is supported by the claimant’s testimony that she would have continued her preinjury job assignment but for the layoff. (Tr. p. 26).
If follows that even if the ALJ erroneously found the claimant was released to return to regular employment under §8-42-105(3)(c), the result is unchanged. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded). Therefore, we need not consider the claimant’s contention that she was temporarily disabled during the disputed period because she was released to “her” regular employment and not regular employment in the general labor market.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 27, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on June 17, 2004 by A. Hurtado.
Estate of Donna Smith, c/o William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
Hewlett-Packard Company, 4920 Centennial Rd., Colorado Springs, CO 80919
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)