W.C. No. 4-467-839Industrial Claim Appeals Office.
December 20, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) insofar as it denied temporary total disability benefits. The claimant argues the ALJ erroneously determined she was “responsible” for a separation from employment within the meaning of § 8-42-105(4), C.R.S. 2001. See also § 8-42-103 (1)(g), C.R.S. 2001. We set the order aside and remand for entry of a new order.
The claimant was employed to drive automobiles for the employer’s auction business. On July 30, 1999, she injured her right shoulder. However, the treating physician did not immediately impose any restrictions, and the claimant continued working until September 20, 1999. The ALJ found that on September 20, the claimant quit “with no reason given” and for the purpose of resting up prior to a vacation.
On November 10, 1999, the claimant underwent surgery after returning from the vacation. A second surgery was performed in December 1999. The medical records of the treating physician and the claimant’s testimony indicate that after the first surgery the claimant was restricted from using her right arm except for writing. (Tr. p. 26; Medical reports of Dr. Ogrodnick, including Claimant’s Exhibits p. 37). The claimant testified that imposition of these restrictions would have prohibited her from performing her regular employment, although she was not restricted from all work. (Tr. pp. 27, 33-34).
The claimant sought temporary total disability benefits commencing November 10, 1999 and continuing until May 4, 2000. (Tr. p. 4). However, the ALJ denied the benefits concluding the claimant was “responsible” for her termination from employment on September 20, 1999, within the meaning of § 8-42-105(4).
The claimant filed a petition to review arguing that “she is not precluded from receiving temporary total disability benefits since she was not a temporarily disabled employee at the time of the termination of her employment.” The claimant did not file a brief in support of the petition to review, and the respondents did not file a brief. Because the claimant’s petition to review is sufficiently specific, we shall address her contention. See Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989).
Sections 8-42-103(1)(g) and 8-42-105(4) are identical. These statutes provide that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage law shall not be attributable to the on-the-job injury.” (Emphasis added). We have previously held that the term “employment” is ambiguous because it could refer to the job the claimant held at the time of the industrial injury or to modified employment which the claimant obtains after the injury. After reviewing the legislative history and applying principles of statutory construction, we have concluded that the statutes are designed to alter the result in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), by prohibiting an injured worker from recovering temporary disability benefits if the worker is responsible for the loss of post-injury modified employment, regardless of whether the industrial injury remains a proximate cause of the post-separation wage loss. Williams v. Team Panels International, Inc.,
W.C. No. 4-452-283 (June 13, 2001); Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001).
We have also held the statutes do not apply unless the claimant is temporarily disabled at the time of the separation. The following language from Grant v. Speedy G’s Mexican Restaurant, W.C. No. 4-449-941
(May 17, 2001), is pertinent:
One of the requirements for establishing entitlement to temporary disability benefits is a showing that the claimant “left work as a result of the injury,” meaning that the claimant is unable to perform the work that she was performing at the time of the injury. See § 8-42-103(1), C.R.S. 2000; PDM Molding v. Stanberg, supra; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Thus, in referring to a “temporarily disabled” employee, it is apparent that §§ 8-42-103(1)(g) and 8-42-105(4) are intended to apply to workers who are not able to perform their regular work as a result of the injury. The wage loss experienced by such workers could be caused by termination of employment only if they were capable of performing and earning wages in such employment. Thus the statutes must contemplate the termination of modified employment which the disabled worker is capable of performing.
Applying these principles here, the ALJ erred in holding that the claimant’s separation from employment in September 1999 disqualified her from receiving temporary total disability benefits following the onset of disability after the surgery in November 1999. At the time of the separation, the claimant was not performing modified employment. Neither was she a “temporarily disabled” employee. To the contrary, the ALJ found the claimant was able to perform her regular employment at the time of the separation. Under these circumstances, the ALJ’s order denying temporary disability benefits must be set aside, and the matter remanded for reconsideration of the issue without regard to § 8-42-103(1)(g) and § 8-42-105(4).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 20, 2001, is set aside insofar as it denied temporary disability benefits, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed December 20, 2001 the following parties:
Phyllis Basye, 7245 Schelly Court, Colorado Springs, CO 80911
Kristy Meyer-Vyncke, ADT Automotive/Colorado Springs Auto Auction, Inc., P. O. Box 5366, Colorado Springs, CO 80931
American Home Assurance, Sarah M. Lewis, Sedgwick Claims Management Services, Inc., 1225 17th St., #2100, Denver, CO 80202-5534
Judith Jones-Bolinski, TYCO International, P. O. Box 5035, Boca Raton, FL 33431-0835
Steven R. Waldmann, Esq., 331 N. Circle Dr., #201, Colorado Springs, CO 80909-6255 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., Ste. 1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy