IN THE MATTER OF THE CLAIM OF LUCY AGRIPINO, Claimant, v. WAL-MART STORES, INC., Employer, and INSURANCE COMPANY STATE OF PENNSYLVANIA, Insurer, Respondents.

W.C. No. 4-307-487Industrial Claim Appeals Office.
June 11, 1998

FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Atencio (ALJ Atencio), which awarded temporary total disability benefits, temporary partial disability benefits and determined average weekly wage. We dismiss with prejudice the petition to review the award of temporary total disability benefits and determination of average weekly wage. We dismiss the remainder of the petition without prejudice.

The claimant suffered a right shoulder injury on June 4, 1996, arising out of and in the course of her employment as a cashier for Wal-Mart Stores, Inc., (Wal-Mart). The respondents admitted liability for temporary total disability benefits up to October 7, 1996, when the claimant returned to modified employment at Wal-Mart. However, Wal-Mart terminated the claimant’s employment when she did not return to work on November 4, 1996.

In an order dated October 7, 1997, ALJ Atencio determined the claimant’s average weekly wage at the time of the injury was $230, which equals a temporary total disability rate of $153.33. ALJ Atencio awarded temporary total disability benefits from October 30, 1996, to February 22, 1997 when the claimant secured alternate employment at a lower wage. ALJ Atencio also awarded temporary partial disability benefits commencing February 22, 1997.

The respondents timely petitioned for review of the October 1997 order, and alleged that the award of temporary disability benefits is not supported by the evidence and is contrary to the applicable law. The respondents also alleged the issues of average weekly wage and temporary partial disability were not endorsed for adjudication before ALJ Atencio. Therefore, the respondents argued that ALJ Atencio exceeded her authority in determining these issues.

On April 9, 1998, ALJ Atencio issued an order entitled “Order Correcting Summary Order and Specific Findings of Fact, Conclusions of law and Order,” in which she reversed her prior determination of average weekly wage and the award of temporary partial disability benefits. However, ALJ Atencio reaffirmed the award of temporary total disability benefits.

I.
Without a determination of average weekly wage, an order awarding temporary total disability benefits is interlocutory and not subject to review. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). However, the record reveals that the issue of average weekly wage was fully litigated before Administrative Law Judge Rumler (ALJ Rumler) on November 19, 1997. Further, ALJ Rumler issued a Summary Order dated November 25, 1997, which determined that the claimant’s average weekly wage at the time of the injury was $230, resulting in a temporary total disability rate of $153.33 per week. Consequently, ALJ Atencio’s October 1997 award of temporary total disability benefits became a “final” order by virtue of ALJ Rumler’s order, and ALJ Atencio’s 1998 order is of no effect insofar as she reversed her prior determination of average weekly wage. See American Express v. Industrial Commission, 712 P.2d 1132 (Colo.App. 1985).

The record also contains a General Admission of Liability dated December 9, 1997, in which the respondents list the claimant’s average weekly wage as $230. Therefore, the respondents’ arguments concerning average weekly wage are moot.

II.
Nevertheless, we conclude that we lack jurisdiction to review the award of temporary total disability benefits, because the record does not contain a request that ALJ Rumler prepare specific findings of fact and conclusions of law, which is a statutory prerequisite to our review of ALJ Rumler’s summary order. See §8-43-215, C.R.S. 1997. Therefore ALJ Rumler’s summary order if final. Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984). Alternatively, the same conclusion is compelled by the respondents’ failure to file a petition to review ALJ Atencio’s 1998 order.

Section 8-43-301(5), C.R.S. 1997, provides that after the appellate briefs have been filed or the time for filing briefs has expired, the ALJ has thirty days in which she may issue a supplemental order “labeled as such limited to the matters raised in the petition to review.” Furthermore, where the supplemental order addresses at least one issue raised on appeal, a petition to review a supplemental order must be filed to preserve the remaining appellate arguments. See Memorial Hospital v. Industrial Claim Appeals Office, (Colo.App. No. 88CA0284, November 3, 1998) (not selected for publication); compare Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146
(Colo.App. 1988). We lack jurisdiction to review a supplemental order in the absence of a timely filed petition to review the supplemental order. Section 8-43-301(6), C.R.S. 1997.

ALJ Atencio’s 1998 order was entered within thirty after the filing of the parties’ appellate briefs, and addressed only the respondents’ allegations that the issues of temporary partial disability and average weekly wage were not properly before ALJ Atencio for adjudication. Under these circumstances, we conclude that the 1998 order is a supplemental order within the meaning of § 8-43-301(6). See Widener v. District Court, 200 Colo. 398, 615 P.2d 33 (1980) (the substance of a document, and not its title, is determinative).

The record does not contain a timely filed petition to review the supplemental order. Consequently, we conclude that we lack jurisdiction to review ALJ Atencio’s 1998 award of temporary total disability benefits.

In reaching this conclusion we recognize that ALJ Atencio’s 1998 order is labeled a “corrected order.” However, §8-43-302(1), C.R.S. 1997 provides that a “corrected order” must be entered within 30 days of the order which is being corrected. The 1998 order was not issued within thirty days of ALJ Atencio’s October 1997 order, and therefore, could not “correct” the October 1997 order. In any case, § 8-43-302(1) states that a corrected order is appealed in the same manner as any other order, and the record does not contain a petition to review the “corrected order.”

III.
Moreover, even if we had jurisdiction to review the award of temporary total disability benefits, we would not grant appellate relief because we reject the respondents’ substantive arguments.

To obtain temporary total disability benefits, the claimant must prove a causal connection between the temporary loss of wages and the industrial injury. Section 8-42-103, C.R.S. 1997; PDM Molding, Inc., 898 P.2d 542 (Colo. 1995). Once established, the claimant is entitled to temporary disability benefits as long as the industrial injury contributes “to some degree” to the wage loss, and none of the events listed in § 8-42-105(3)(a)-(d) have occurred. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).

The respondents contend that PDM is dispositive of the claimant’s entitlement to temporary disability benefits after October 7, 1996. PDM provides that if an employee who has sustained a work-related injury is subsequently separated from modified employment, the ALJ must first determine if the claimant was “at fault” for the loss of the modified employment. If the claimant is determined to be “at fault” for the employment separation, the claimant is precluded from receiving temporary disability benefits in connection with the subsequent wage loss unless the claimant establishes that the subsequent wage loss is “to some degree” the result of the industrial injury and not her own actions. See also Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).

Here, ALJ Atencio determined that the claimant was not “at fault” for the termination of her employment at Wal-Mart. Rather, ALJ Atencio determined that Wal-Mart did not accommodate the claimant’s medical restrictions. ALJ Atencio also found that the claimant did not return to work on November 4 because she reasonably believed she had been fired for refusing to perform duties which exceeded her medical restrictions. This finding is a plausible inference from the claimant’s testimony, and therefore, must be upheld. Section 8-43-301(8), C.R.S. 1997; F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985).

Moreover, because the only employment which was offered to the claimant did not meet her physical limitations, ALJ Atencio could reasonably infer that the industrial disability contributed “to some degree” to the claimant’s subsequent unemployment. Thus, we perceive no error in the award of temporary total disability benefits.

The respondents remaining arguments have been considered and are not persuasive. The record contains substantial lay and medical evidence that the claimant was medically restricted from performing her regular work from October 7, 1996 through November 4, 1996. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Furthermore, ALJ Atencio could reasonably infer that the modified employment offered by Wal-Mart required the claimant to push shopping carts, and the claimant was physically unable to do so as a result of the industrial injury. (Tr. p. 51). In fact, the record supports ALJ Atencio’s finding that the claimant reinjured her shoulder at work on October 16, 1996, while pushing carts. Therefore, the respondents mistakenly assert that the claimant failed to prove she was temporarily “disabled.” See McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).

IV.
Lastly, § 8-42-106 C.R.S. 1997, provides that temporar partial disability benefits are paid at a rate equal to sixty-six and two-thirds percent of the difference between claimant’s average weekly wage at the time of the injury and the claimant’s average weekly wage during the temporary disability. See University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994). It follows that ALJ Rumler’s determination of the claimant’s average weekly wage is not dispositive of the claimant’s rate of temporary partial disability benefits. Therefore, there is no final award of temporary partial disability benefits for our review, and the respondents’ petition to review the award of temporary partial disability benefits must be dismissed without prejudice. See Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).

IT IS THEREFORE ORDERED that ALJ Atencio’s orders of October 7, 1996 and April 9, 1998, which award temporary total disability benefits are affirmed.

IT IS FURTHER ORDERED that the respondents’ petition to review ALJ Atencio’s orders concerning temporary partial disability benefits is dismissed without prejudice.

INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean

NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed June 11, 1998 to the following parties:

Lucy Agripino, 151 W. Egbert St., #304, Brighton, CO 80601

Debbie Fielden, Wal-Mart Stores, Inc., 3600 Youngfield St., Wheat Ridge, CO 80033

Mardeen Harper, Claims Management, Inc., 3901 Adams Road, #C, Bartlesville, OK 74006-8458

John A. Steninger, Esq., 4500 Cherry Creek South Drive, Ste. 930, Denver, CO 80246 (For the Claimant)

Harvey D. Flewelling, Esq., Richard A. Bovarnick, Esq., 5353 West Dartmouth Ave., Ste. 400 Denver, CO 80227 (For the Respondents)

BY: _______________________