W.C. No. 4-250-881Industrial Claim Appeals Office.
October 22, 1998
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ), which awarded temporary total disability benefits commencing September 2, 1997. The respondent contends the ALJ erred in finding that the claimant’s wage loss after September 2 was to some degree caused by industrial the injury rather than the claimant’s decision to quit employment. We affirm.
On March 26, 1995, the claimant sustained a compensable injury which resulted in the amputation of several fingers on his left hand. In September 1995, a treating physician placed the claimant at maximum medical improvement (MMI) and assessed permanent impairment of thirty-four percent of the left upper extremity.
The claimant sought a Division-sponsored independent medical examination (IME) for purposes of challenging the treating physician’s determination of MMI. In a report dated May 5, 1997, the IME physician opined the claimant was suffering from a major depressive disorder including symptoms of “avoidance and social withdrawal.” Thus, the IME physician stated the claimant was not at MMI and needed additional psychiatric treatment.
Meanwhile, in May 1996, the claimant began psychiatric treatment with Dr. Darton. Dr. Darton believed the claimant suffered from depression as evidenced by disrupted sleep, memory loss, concentration loss, irritability, social withdrawal, anxiety, and occasional suicidal ideation. In a report dated April 24, 1997, Dr. Darton opined the claimant was “unable to work due to the extent of his injuries.” In her deposition testimony, Dr. Darton stated the claimant’s condition would interfere with his ability to deal with “confrontational personalities.” (Darton depo. p. 28).
Commencing in June 1996, the claimant obtained employment doing light custodial work for Temple Emanuel. On September 1, 1997, the claimant quit this employment due to a conflict with a co-worker.
The issue presented to the ALJ was whether the claimant was entitled to temporary total disability benefits commencing September 2, 1997. The ALJ found that the claimant was “at fault” for the loss of his employment with Temple Emanuel. However, relying on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ concluded that the claimant was entitled to temporary total disability benefits because the “physical and emotional effects of the claimant’s industrial injuries are, clearly, to some degree an ongoing cause of his loss of wages following the termination of his employment.” In support of this conclusion, the ALJ credited the claimant’s testimony, the report of the IME physician, and the testimony of Dr. Darton that the claimant’s ongoing psychological problems interfere with his prospects for employment. The ALJ further determined that the ongoing physical consequences of the industrial injury impaired his access to the labor market.
On review, the respondent contends the evidence does not support the ALJ’s finding that the claimant’s post-separation wage loss was to some degree caused by the industrial injury. In support of this argument, the respondent cites the claimant’s testimony that he believed he would still be working at Temple Emanuel had he not quit over the conflict with the co-worker. The respondent also points out that Dr. Darton was unaware the claimant was working at the time she issued her April 24 report stating that the claimant could not work. Finally, the respondent relies on evidence that the claimant did not conduct a job search for three months after he quit employment with Temple Emanuel. We are unpersuaded by these arguments.
In PDM Molding, Inc. v. Stanberg, supra, the Supreme Court set out the conditions under which a temporarily disabled claimant’s loss of employment precludes a subsequent award of temporary total disability benefits. The court held that an ALJ must first determine whether the claimant was at fault for loss of the employment. If so, the ALJ must then determine whether to some degree the claimant’s inability to procure “employment at pre-injury wage levels” is casually connected to the ongoing effects of the injury. Under this test, the claimant need not prove that the work-related injury is the sole cause of the wage loss, only that it is a partial cause. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
The question of whether the claimant proves the requisite casual relationship between injury and wage loss is one of fact for determination by the ALJ. Black Roofing Inc. v. West,
___ P.2d ___ (Colo.App. No. 98CA0176, August 6, 1998). Although evidence of a claimant’s efforts to find work after the separation from employment are relevant to determining the causation issue, there is no requirement that the claimant prove a job search to obtain temporary benefits. Rather, lack of a job search is only one factor which may be considered with other relevant evidence to determine the cause of the claimant’s post-separation wage loss Black Roofing Inc. v. West, supra.
Because the issue of causation is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondent’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding that the claimant’s psychological condition was to some degree the cause of the post-separation wage loss. The claimant’s testimony, together with that of Dr. Darton, supports the inference that the claimant’s depression interfered with his ability to search for work, and his ability to hold employment if it could be obtained. The ALJ was particularly persuaded by Dr. Darton’s opinion that the claimant’s psychological condition interfered with his ability to interact successfully with other employees. Moreover, the claimant’s range of employment opportunities was restricted because he could not tolerate the sounds of industrial machinery.
It is true, as the respondent argues, that the claimant did not conduct a job search for three months after his separation. (Tr. p. 36). However, the ALJ was not required to find this evidence decisive in view of other evidence that the claimant’s psychological condition caused him to engage in avoidance and withdrawal behaviors. Black Roofing Inc. v. West, supra.
Further, there is no fatal inconsistency in Dr. Darton’s opinions. It may be true that Dr. Darton was unaware the claimant was working at the time she issued her April 24 letter.
However, Dr. Darton’s April 24 statement that the claimant was not able to work is not inherently inconsistent with her opinion that the claimant should not be in hostile work situations where he is likely to encounter confrontations with co-workers. (Darton depo. p. 29). The mere fact the claimant did work does not mean the job was appropriate. In any event, the critical issue is not whether the claimant was able to work at Temple Emanuel, but whether to some degree his inability to find alternative employment can be attributed to the industrial injury. PDM Molding, Inc. v. Stanberg, supra.
The respondent also appears to argue that the ALJ erred in finding a relationship between the industrial injury and the claimant’s ongoing psychological problems. The respondent asserts that the claimant sustained an independent aggravation of his condition due to the “hostile work environment” at Temple Emanuel. We reject this argument.
The issue of causation is generally one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Here, the record contains ample evidence that the claimant had ongoing psychological problems prior to the confrontation with the co-worker at Temple Emanuel. Therefore, the ALJ could logically conclude that those problems continued after the confrontation.
Moreover, the record supports the ALJ’s conclusion that the claimant’s physical restrictions contributed to his wage loss after September 2. The IME physician determined the claimant never reached MMI for the industrial injury, and the respondent has not challenged that determination. Therefore, the evidence supports the ALJ’s determination that the claimant’s temporary disability never ceased, and the ongoing physical limitations are to some degree the cause of the claimant’s wage loss. See Dowd v. V.F.W. Post 1247, W.C. No. 3-106-845 (May 14, 1998) (MMI may not be divided between various components of an industrial injury so as to terminate right to temporary total disability benefits) but see, City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1998).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 22, 1998 to the following parties:
Ayalew A. Begigu, 1355 Pearl St., Denver, CO 80203.
John Weirich, CONAGRA, Inc., 4545 E. 64th Ave., Commerce City, CO 80022.
Rebecca Daniels, Sedgewick James of Nebraska, Inc., 10909 Mill Valley Rd., #200, Omaha, NE 68154-3947.
Tim Guill, Esq., 1777 S. Harrison, #906, Denver, CO 80210 (For the Claimant).
Melissa J. Loman, Esq. David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondent).
BY: _______________________