W.C. No. 4-355-716Industrial Claim Appeals Office.
April 22, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ). The claimant contends the ALJ erred insofar as she denied temporary partial disability benefits after March 18, 1998. We affirm.
The claimant suffered a compensable injury on September 24, 1997, which rendered him temporarily totally disabled. On November 5, 1997, Dr. Foster approved a light duty job with the employer, and released the claimant to return to modified employment. Dr. Foster released the claimant to work five hours per day for two weeks, and eight hours per day thereafter. On November 10, 1997, the claimant returned to part-time, modified duties with the employer. Effective November 24, 1997, the claimant resumed employment eight hours a day. The claimant testified that he could not do some of the work assigned to him, and was not happy with the assigned duties. Consequently, the claimant worked less than full time between January 7, 1998, and March 18, 1998 and the respondents admitted liability for temporary partial disability benefits for this period. On March 18, 1998, the claimant put himself on medical leave until April 20, 1998.
The ALJ determined that Dr. Foster released the claimant to full-time work with restrictions, and rejected the claimant’s self assessment of his limitations. The ALJ also determined that the employer provided full-time employment within the claimant’s restrictions. Consequently, the ALJ determined that the claimant’s temporary partial wage loss was attributable to his failure to perform available work, not the industrial injury. Therefore, the ALJ denied temporary total and temporary partial disability benefits after March 18, 1998.
On review the claimant does not dispute the denial of temporary total disability benefits. In fact, the claimant concedes that he is at fault for the loss of the modified employment on March 18, 1998. However, the claimant argues that because the respondents admitted liability for temporary partial disability benefits from January 7 to March 18, 1998, his “fault” is not the cause of his entire wage loss. Rather, the claimant contends that part of his wage loss remained due to the industrial injury. Consequently, he argues that the ALJ erroneously denied ongoing temporary partial disability benefits. In support, the claimant relies on our conclusions in Lee v. Sealy Corporation
W.C. No. 4-1279-535 (December 6, 1994). We perceive no error.
Section 8-42-105(3)(b), C.R.S. 1998, provides that temporary total disability benefits terminate when the claimant returns to modified employment. Where the modified employment offers less work than the preinjury job, or is paid at a reduced wage, the claimant is entitled to temporary partial disability benefits equal to sixty-six and two-thirds percent of the difference between the employee’s average weekly wage at the time of the injury and the claimant’s average weekly wage during the continuance of the temporary partial disability. Section 8-42-106(1), C.R.S. 1998. Lee v. Sealy Corporation, supra.
Here, it is undisputed the claimant returned to modified employment on November 10, 1997. The ALJ determined that the modified work did not exceed the claimant’s physical restrictions. Furthermore, the ALJ determined that by November 24 the modified employment was full-time and did not involve a reduced wage. These findings are supported by substantial, albeit conflicting, evidence, and therefore, are binding on review. (Tr. pp. 14, 22, 26, 37, 40) § 8-43-301(8), C.R.S. 1998; Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983).
Moreover, the ALJ’s findings compel the conclusion that the claimant’s entitlement to all temporary disability benefits terminated in November 1997. Section 8-43-105(3)(b). Nevertheless, an insurer may not retroactively withdraw a General Admission of Liability for the payment of temporary partial disability benefits. Kraus v. Artcraft Sign Co., 710 P.2d 480
(Colo. 1985); HLJ Management Group v. Kim, 804 P.2d 250
(Colo.App. 1990). Therefore, the ALJ correctly limited the respondents to prospective relief by denying all temporary disability benefits after March 18, 1998.
Our conclusions in Lee v. Sealy Corporation, supra, do not compel a contrary result. In Lee, it was undisputed that the claimant returned to modified employment at a reduced wage. Therefore, Lee is factually distinguishable. See also Hines v. City Market, Inc., W.C. Nos. 3-109-401 3-115-285 (June 27, 1995).
Furthermore, this result is consistent with PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), where the court held that an employee terminated for fault is not precluded from receiving an award of further temporary disability benefits if the subsequent wage loss is to “some degree” the result of the industrial injury.
Here, the claimant concedes that he was “at fault” for the employment loss on March 18, 1998. Further, the ALJ was persuaded that the claimant was working full-time as of March 18, 1998, and that such employment remained available to the claimant. In fact, the ALJ determined that the cause of the claimant’s temporary wage loss was his personal decision not to work because the work was indoors instead of outdoors which he preferred. These findings support the conclusion that the claimant failed to prove that the industrial injury was “to some degree” the cause of his wage loss after March 18, 1998, and this finding supports the ALJ’s denial of ongoing temporary partial disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed April 22, 1999
the following parties:
Larry Carrillo, 2120 Friendship Ct., Colorado Springs, CO 80909
Academy Fence Company, 4221 Sinton Rd., Colorado Springs, CO 80907
California Indemnity Insurance Company, Attn: Mike McKenna, 5575 DTC Pkwy., Englewood, CO 80111
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John H. Sandberg, Esq., 1225 17th St., #2800, Denver, CO 80202 (For Respondents)
BY: AP