W.C. No. 4-280-423Industrial Claim Appeals Office.
September 8, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which was entered pursuant to our Order of Remand dated February 10, 1997. The claimant contends that the ALJ erred in terminating her award of temporary total disability benefits on December 28, 1995. We agree, and therefore, reverse.
The pertinent facts reveal that the claimant suffered a compensable injury to her upper extremities while working for the Sealy Corporation (employer). On December 21, 1995, the treating physician, Dr. Budd, imposed medical restrictions which precluded the claimant from performing her regular employment. The employer then provided modified employment. However, the claimant refused to perform the modified employment, and left the job. The claimant testified that she refused to perform the job because she experienced a “panic attack.” As a result of the “panic attack” the claimant’s personal physician, Dr. Michael, removed the claimant from work for the period December 21, 1995 to December 27, 1995.
In her prior order, the ALJ expressly relied upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), and found that the claimant was “at fault” for the loss of the modified employment. Therefore, the ALJ concluded that the employment separation severed the causal connection between the claimant’s injury and her temporary wage loss. The ALJ also determined that the claimant failed to reestablish a causal connection between the injury and her subsequent wage loss. Therefore, the ALJ denied the claim for temporary disability benefits commencing December 21, 1995.
On review, we concluded that the ALJ’s findings of fact were insufficient to permit appellate review of whether the ALJ properly determined that the claimant was “at fault” for the employment separation. Therefore, we set aside the order and remanded the matter for additional findings and entry of a new order.
On remand, the ALJ entered the order currently under review. The ALJ found that the claimant refused to perform the modified work assignment on December 21 because she experienced a panic attack. The ALJ also found that the medically documented panic attack was not a volitional act. Therefore, the ALJ determined that the claimant was not “at fault” for her separation, and that the claimant is entitled to temporary total disability benefits from December 21, 1995 through December 27, 1995, “when Dr. Michael released her to return to work.”
PDM Molding, Inc. v. Stanberg, supra, holds that where the claimant establishes a causal connection between the industrial injury and a temporary wage loss after a separation from modified employment, the claimant is entitled to temporary disability benefits until the occurrence of one of the events listed § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.) [amended in 1996]. The requisite causal connection is established by proof that the claimant is medically restricted from performing he regular employment as a result of the industrial injury, and that the industrial disability contributed “to some degree” to the post-separation wage loss. PDM Molding, Inc. v. Stanberg, supra; Horton v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996). Furthermore, the attending physician’s opinion concerning the claimant’s inability to perform regular employment is dispositive. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
On review, neither party disputes the ALJ’s findings that the claimant was not “at fault” for the December 21 separation from employment, and that the claimant was medically restricted from performing her regular duties between December 21, 1995 and December 27, 1995. These findings reflect the ALJ’s determination that the claimant established a causal connection between the industrial injury and her temporary wage loss commencing December 21, 1995. Consequently, the claimant is entitled to temporary total disability benefits until such benefits are terminated pursuant to § 8-42-105(3).
Under § 8-42-105(3), temporary disability benefits terminate when: 1) The claimant reaches maximum medical improvement (MMI); 2) The claimant returns to regular or modified employment; 3) The claimant is released to regular employment; or 4) The claimant is released to modified employment and fails to begin the employment after a written offer of employment within her restrictions. Furthermore, the respondents bear the burden to establish grounds for the termination of temporary total disability benefits under § 8-42-105(3)(a)-(d).
The ALJ found that Dr. Michael’s release “to return to work” triggered the termination of temporary total disability benefits. However, the record indicates that Dr. Michael released the claimant to “light,” not regular, employment. Furthermore, the claimant testified, and the respondents concede, that the medical restrictions imposed by Dr. Budd, “have remained the same since December 21, 1995.” (Tr. p. 28). These physical restrictions precluded the claimant from performing her regular duties. Under these circumstances, we are compelled to conclude that the claimant was not released to her regular employment on December 27, 1995. See Burns v. Robinson Dairy, Inc., supra.
Furthermore, there is no finding or assertion that the claimant is at MMI or has returned to regular or modified employment. Consequently, the claimant is entitled to further temporary total disability benefits unless she refused a written offer of modified employment. There is no assertion or finding of a written offer of modified employment after December 21, 1995. Therefore, we hold as a matter of law that the ALJ erred in terminating the claimant’s benefits as of December 27, 1995.
In reaching this conclusion we recognize the respondents’ argument that the claimant did not provide them with Dr. Michael’s release, and “failed to return to work” after Dr. Michael’s release. However, the ALJ found that the employer terminated the claimant’s employment on December 21, 1995, and that the claimant was not “at fault” for the termination. The respondents’ have not appealed the ALJ’s order, and consequently, we must uphold the ALJ’s determination. This determination supports a conclusion that the claimant could not “return to work” for the employer in the absence of a new offer of employment.
Moreover, a temporarily disabled claimant who is not at fault for the loss of modified employment is not required to look for other employment to obtain additional temporary disability benefits. PDM Molding, Inc. v. Stanberg, supra; Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Therefore, even if the record supports the respondents’ assertion that the claimant “made no effort to contact” them after December 21, 1995, and did not look for other employment between December 27, 1995 and February 1996, our conclusion would remain unchanged. Here, unlike the situation in PDM Molding, the claimant’s loss of employment was not an intervening cause of the claimant’s wage loss because she was not “at fault” for loss of that employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 17, 1997, is reversed, and the claimant is awarded temporary total disability benefits from December 21, 1995 through December 28, 1995, and continuing thereafter, until terminated by law.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed September 8, 1997 to the following parties:
Gina M. Martinez, 2852 Preakness Way, Colorado Springs, CO 80916
Sealy Corporation, 10th Flr., Halle Bldg., 1228 Euclid Ave., Cleveland, OH 44115-1886
Sealy Corporation, 6275 Lake Shore Ct., Colo. Spgs., CO 80915
Laurie Iverson, Hartford Ins. Co., P.O. Box 22815, Denver, CO 80222
Tama L. Levine, Esq., 1515 Arapahoe St., Ste. 600, Denver, CO 80202 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Road, Colorado Springs, CO 80909 (For the Claimant)
BY: _______________________________