W.C. No. 4-122-742Industrial Claim Appeals Office.
July 2, 1999.
ORDER OF REMAND
The respondent seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as it awarded temporary disability benefits. We affirm the order to the extent it determined the claimant is entitled temporary disability benefits, but remand the matter for a determination of the date on which benefits should commence.
This matter was before us previously. Our prior order, dated August 28, 1998, contains a statement of the facts, and we will not repeat them here. We remanded the matter with directions to determine whether the claimant’s December 1994 injury (second injury) caused additional restrictions which temporarily impaired the claimant’s ability to earn wages and justified an award of temporary disability benefits under City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997).
On remand, the ALJ found that Dr. Weinstein imposed additional restrictions as a result of the claimant’s December 1994 shoulder injury. As the ALJ found, these restrictions prohibited the claimant from grasping, pushing or pulling, or doing fine manipulation with his right hand. (Weinstein Return to Work Evaluation, February 1, 1995). The ALJ also noted that the work restrictions imposed by Dr. Weinstein in March 1997 appear to be greater than those established in November 1994. In view of this evidence and the claimant’s testimony, the ALJ concluded that the claimant was entitled to an award of temporary total and temporary partial disability benefits. However, the ALJ did not specify when the award of temporary disability benefits was to commence.
I.
The respondent first contends the claimant failed to carry his burden of proof to establish that the restrictions imposed by Dr. Weinstein caused an additional loss of temporary earning capacity as required by City of Colorado Springs v. Industrial Claim Appeals Office, supra. The respondent also argues the claimant’s 1995 retirement from his job with the respondent precludes an award of temporary disability benefits because the claimant voluntarily withdrew from the labor force. We disagree with these arguments.
The question of whether the claimant proved additional disability as a result of the December 1994 shoulder injury was one of fact for determination by the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. As we noted in our prior order, the claimant need not prove an unsuccessful job search to obtain benefits if the evidence supports a reasonable inference that to some degree the new restrictions impaired his earning capacity. See Black Roofing Inc. v. West, 967 P.2d 195
(Colo.App. 1998).
Here, the evidence supports an inference that the December 1994 shoulder injury substantially restricted the claimant’s ability to use his right upper extremity in a meaningful way. The limitations on use of the right upper extremity imposed substantially greater restrictions than existed in November 1994. Under these circumstances, the ALJ could logically conclude that the impairment of the upper extremities caused a greater loss of access to the labor market than would have existed with the claimant’s leg problem alone.
Further, we reject the respondent’s assertion that the claimant’s retirement constitutes an impediment to an award of temporary disability benefits. Here, the ALJ found that the industrial injury prompted the claimant’s decision to retire because the employer believed the claimant was an unsafe worker. Consequently, the ALJ need not have found that the claimant “voluntarily” removed himself from the work force by retiring, or that the decision to retire was the sole cause of the subsequent wage loss. Cf. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995).
II.
The respondent next contends the ALJ’s order is not sufficiently definite with respect to the dates of temporary disability. We agree.
The ALJ’s order does not determine the date on which the claimant’s temporary disability benefits should commence subsequent to the initial date of MMI in November 1994. Because this question involves factual issues which are beyond our authority to determine, the matter must be remanded to the ALJ for purposes of establishing the commencement date of temporary disability benefits.
We note the respondent’s assertion that the claimant reached MMI for the December 1994 injury in September 1997, and that temporary disability benefits should end in September 1997. However, the hearing in this matter occurred in May 1997, and the evidence to which the respondent refers was not before the ALJ. Consequently, we do not understand the ALJ’s order to preclude termination of temporary total disability benefits at any time subsequent to May 1997. Rather, the ALJ merely determined that temporary disability benefits should continue as of the date of the hearing in May 1997, and until such time as the benefits could be terminated in accordance with the law. The ALJ did not purport to consider a termination date.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 3, 1998, is set aside insofar as it awarded temporary total disability benefits and temporary partial disability benefits without establishing the date on which the benefits commence. The matter is remanded for a determination of the date on which temporary disability benefits shall commence.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed July 2, 1999 to the following parties:
Donald G. Wujcik, 645 High Rd., Divide, CO 80814
City of Colorado Springs, P.O. Box 1575-1145, Colorado Springs, CO 80901
Jon C. Thomas, Esq., 1032 N. Wahsatch Ave., Colorado Springs, CO 80903 (For Claimant)
Chad J. Hessel, Esq., 108 E. St. Vrain, #20, Colorado Springs, CO 80903 (For Respondents)
By: A. Pendroy