IN THE MATTER OF THE CLAIM OF GASPARE LICCATA, Claimant, v. VINCENZO’S, and Employer, TRUCK INSURANCE EXCHANGE, Insurer, Respondents.

W.C. No. 4-772-778.Industrial Claim Appeals Office.
October 27, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated April 21, 2010, that denied and dismissed the respondents’ request to terminate indemnity benefits. We modify the basis for the denial but otherwise affirm the order.

The claimant was injured in an industrial accident while working at the employer’s restaurant as a chef when he fell down some stairs. The claimant was disabled from his usual employment and received temporary total disability benefits (TTD) from that date. The respondents sought to terminate TTD on the basis that the claimant had returned to employment on May 26, 2009. The respondents alleged the claimant opened a bakery and deli on that date.

The ALJ determined that the credible and persuasive evidence presented at the hearing failed to establish that the claimant returned to regular or modified employment after May 26, 2009. The ALJ concluded that the claimant testified credibly that after the work injury he was disabled and unable to work in the new bakery and deli business that he started. However, the ALJ also concluded that the claimant credibly testified that he worked as a consultant for one and one half hours per day after May 26, 2009, until November 1, 2009, because his work injury prevented him from performing his usual work.

The respondents contend the ALJ erred in failing to find that the claimant had returned to work and in failing to terminate the claimant’s award of TTD benefits. The respondents further contend that the ALJ erred in failing to determine that the

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respondents are entitled to a credit against wages earned by the claimant during the period of May 26, 2009 to November 1, 2009. We are not persuaded that the respondents are entitled to terminate temporary disability benefits.

The ALJ made the following findings of fact. In January 2009 the claimant planned with business partners to open a restaurant. The restaurant was named Gaspare’s Restaurant after the claimant. The claimant was unable to function as more than a consultant for the business because of his work injury. The claimant invested $53,000 of his money in the restaurant and received $17,000 return on his investment. However, the claimant credibly testified that he never earned wages from work done at the restaurant. The claimant worked as a consultant for no more than one and one half hours per day at the restaurant between May 26 and November 1, 2009. The surveillance video admitted into evidence at the hearing failed to establish that the claimant worked at the restaurant. The surveillance video did not establish that he returned to regular employment and that he was no longer disabled by the work injury. The surveillance video was poor quality. The activities reflected in the surveillance video through a narrow window into the kitchen failed to persuade the ALJ that the claimant was not disabled by the work injury and that he had returned to regular or modified employment.

However, we note that the video shows a man wearing an apron and moving about the kitchen of Gaspare’s Restaurant. Exhibit J. The video shows a man carrying a serving dish and performing other types of activities in the kitchen. The claimant, Gaspare Liccata, admitted that he was the person in the video taken at Gaspare’s Restaurant. Tr. 34. Further, the claimant, after viewing the video made the following statement:

Question: So you do admit to work at the beginning?
Answer: Yes. Yes.
Tr. 34

Despite this evidence the ALJ in one part of the order found that the claimant had not returned to regular or modified employment. The ALJ reached the following specific conclusions:

Claimant worked as a consultant for no more than one and one half hours per day at the bakery and deli between May 26 and November 1, 2009. Claimant was unable to work because of his disabling work injury.

These two findings appear to be inconsistent since the claimant is found to be unable to work, but worked as a consultant. We also noted that in his Brief in Opposition the claimant twice concedes that beginning in January 2009 he was working with his

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business partners as a consultant at the restaurant. In our view, to the extent that the ALJ found that the claimant was unable to perform any modified employment because of his disabling work injury, such determination was rebutted by such certain evidence that we can say the ALJ erred as a matter of law by believing it. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).

Nevertheless, reading the ALJ’s order as a whole we understand it to determine that the claimant, after the industrial injury, did begin limited work as a consultant for no more than one and one half hours per day at the restaurant. However, even with this reading of the order the claimant’s entitlement to TTD came to an end. A claimant, as a condition of receiving TTD benefits, may not be working. Wolford v. Pinnacol Assurance 107 P.3d 947 Colo. (2005). Section 8-42-105(3)(b) provides that temporary total disability benefits shall continue until the employee returns to regular or modified employment. Therefore, the claimant, upon returning to work as a consultant was no longer entitled to TTD benefits.

However, because a claimant is no longer entitled to TTD benefits does not mean that all temporary disability benefits must end. Once TTD benefits end a claimant may be entitled to “temporary partial disability” pursuant to § 8-42-106 C.R.S. In that case, the claimant would be entitled to receive sixty-six and two-thirds percent of the difference between the employee’s average weekly wage at the time of the injury and the employee’s average weekly wage during the continuance of the temporary partial disability, not to exceed a maximum of ninety-one percent of the state average.

At the hearing the claimant contended that the $17,000 he received from Gaspare’s Restaurant was merely a return on his initial investment, rather than earned wages from work done at the restaurant. The ALJ credited this testimony and found that the claimant never earned wages from work done at Gaspare’s Restaurant.

In our view, given the ALJ’s interpretation of the surveillance video and the claimant’s testimony, and her inferences regarding the nature of the payments from Gaspare’s Restaurant to the claimant there is substantial evidence supporting the determination that the claimant only performed work as a consultant and received no wages. Although the evidence could unquestionably be construed differently, we cannot say that the ALJ was compelled to view the monetary transfer as more than some type of return on a passive investment See Matus V. David Matus DBA David Matus
W.C. No. 4-740-062 (July 13, 2010).

Because we affirm the ALJ’s determination that the claimant earned no wages, it follows that under the formula in § 8-42-106 there would be no difference between the TTD rate and the TPD rate. Therefore we are not persuaded that the ALJ erred in failing

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to allow the respondents to terminate temporary benefits payments. Nor in this situation can we say that the ALJ erred in allowing the respondents to take a credit against wages allegedly earned by the claimant during the period of May 26, 2009 to November 1, 2009. We only modify the order to reflect that the respondents’ request to terminate temporary benefits is denied on the basis of failure to demonstrate that the claimant earned wages during the disputed period of time

IT IS THEREFORE ORDERED that the ALJ’s order dated April 21, 2010 as modified is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

GASPARE LICCATA, 1601 COLORADO BLVD., UNIT 6304, DENVER, CO, (Claimant).

VINCENZO’S, 13990 GLENEAGLE DRIVE, COLORADO SPRINGS, CO, (Employer).

TRUCK INSURANCE EXCHANGE, Attn: BETH NEU, C/O: FARMERS INSURANCE GROUP, OKLAHOMA, OK, (Insurer).

BUESCHER, GOLDHAMMER, KELMAN DODGE, PC, Attn: SHELLEY P DODGE, ESQ./GABE DUSENBURY, ESQ., DENVER, CO, (For Claimant).

VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., 1 DENVER, CO, (For Respondents).

GASPARE LICCATA, WHEAT RIDGE, CO, (Other Party).

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