W.C. No. 4-404-024.Industrial Claim Appeals Office.
September 27, 2004.
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Martinez (ALJ) which reopened the claim based upon a worsened condition but denied temporary disability (TTD) benefits under § 8-42-105(4), C.R.S. 2003. We reverse the denial of benefits.
On December 17, 1998, the claimant suffered a work-related back injury while working as a cook for the respondent-employer. The respondents admitted liability for TTD benefits commencing December 18, 1998. The claimant reached maximum medical improvement (MMI) in October 1999, and the claim was subsequently closed.
Because the employer’s restaurant burned down, the claimant held post-injury employment with other employers. On May 31, 2001, the claimant voluntary quit her post-injury employment so she could provide full-time care for her child who was born in July 2001.
The ALJ found the claimant’s condition from the industrial injury worsened in 2001, and therefore reopened the claim. He further found the claimant has been temporarily totally disabled since November 12, 2003, due to the worsened condition. However, the ALJ found the claimant was responsible for the termination of employment on May 31, 2001, and therefore concluded she is barred from receiving additional temporary disability benefits under §8-42-105(4) and Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003).
On review the claimant contends the ALJ erroneously denied TTD benefits. In support, the claimant argues that Longmont Toyota
was wrongly decided and should not apply to the facts of this case. We agree that Longmont Toyota is not applicable, but for reasons other than those stated by the claimant.
The purpose of TTD benefits is to compensate for the temporary loss of wages which occurs when restrictions caused by the industrial injury render the claimant physically unable to perform the duties of regular employment. See Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986). To receive temporary disability benefits, the claimant is required to establish a causal connection between the industrial disability and the loss of wages. Once the claimant establishes that the injury has caused disability, and that the claimant left work as a result of the disability, benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2003. Insofar as pertinent, § 8-42-105(3)(a) terminates temporary disability benefits at MMI.
Section 8-42-105(4) and identical language in § 8-42-103(1)(f), C.R.S. 2003, (the termination statutes) provide that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” In Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, the court held that the term “resulting wage loss” means any wage loss following a termination for which the claimant is responsible. However, the General Assembly expressly limited application of the termination statutes to injuries occurring on or after July 1, 1999. See
1991 Colo. Sess Laws, ch. 90, at 266. Therefore, the termination statutes are not applicable to this claim which is based on a 1998 injury.
Instead, the applicable law provides that TTD benefits may be awarded after MMI where the claimant suffers a worsened condition which causes a “greater impact” on the claimant’s temporary work capacity than existed at the time of MMI. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637
(Colo.App. 1997). The question of whether the claimant has sustained her burden to prove that the worsened condition has further impaired her ability to work is one of fact for resolution by the ALJ. City of Colorado Springs v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2003; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). Furthermore, where the ALJ’s findings lead to only one conclusion the claimant’s entitlement becomes a question of law. See Schreiber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993).
Here, the ALJ found, and it is undisputed, that the claimant was capable of working and worked as a waitress at the time of MMI. However, the ALJ found that as a result of the claimant’s worsened condition she experiences “more pain, more lumbar stiffness and reduced lifting ability.” The ALJ also found: “But for her worsened condition, the claimant would have sought employment after November 12, 2003.” (Finding of Fact 5).
The ALJ’s findings are supported by substantial evidence in the record. Further, the findings reflect the ALJ’s determination that the claimant proved the worsened condition caused a greater impact on her temporary earning capacity than existed at the time of MMI. Under these circumstances, the ALJ erred in denying TTD benefits and we reverse that portion of the order.
IT IS THEREFORE ORDERED that the ALJ’s Corrected Order dated April 30, 2004, is reversed insofar as the ALJ denied TTD benefits. Based on the ALJ’s findings, the claimant is entitled to TTD benefits commencing November 12, 2003.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Kim Bellon, Fort Worth, TX, Scott Lindsay, Grand Junction Diner, Grand Junction, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Christopher Seidman, Esq., Grand Junction, CO, (For Claimant).
Eliot J. Wiener, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).