W.C. No. 4-503-762.Industrial Claim Appeals Office.
January 27, 2004.
ORDER OF REMAND
This matter has been remanded by the court pursuant to an order dated August 21, 2003. Mandate issued on January 3, 2004.
The claimant was hired on May 30, 2001, to perform a painting job. The claimant suffered compensable injuries later that day while obtaining an identification badge required by the employment.
The court held we erred in reversing a determination by Administrative Law Judge Mattoon (ALJ), that the claimant suffered compensable injuries. Therefore, the court set aside our order and remanded the matter for consideration of any other unresolved issues presented on appeal. We set aside the ALJ’s order awarding temporary total disability benefits.
The ALJ found that as a result of the industrial injuries, the claimant “has been unable to work for any sustained period” since June 6, 2001. (Finding of Fact 13). The ALJ also found that in “the Fall of 2001, Claimant began to run his own painting business again. He did this for approximately two weeks, and had to stop due to pain.” (Finding of Fact 19). The ALJ therefore ordered the respondents to pay temporary total disability benefits from June 6, 2001 through January 10, 2002, when the claimant was placed at maximum medical improvement.
On review, the respondents contend the ALJ erroneously awarded temporary total disability benefits for the claimant’s lost time in October 2001 when the claimant had his own painting business and earned $3,500. (Tr. p 47). We agree.
Temporary disability benefits are payable when the industrial injury causes a disability, and the disability results in an actual loss of wages. Section 8-42-103(1), C.R.S. 2003. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Where the disability precludes the claimant from earning all wages, the claimant is entitled to temporary total disability benefits under the provisions of § 8-42-105, C.R.S. 2003. Where the wage loss is less than total, the claimant is entitled to temporary partial disability benefits. Section 8-42-106 C.R.S. 2003.
Section 8-42-105(3)(b), C.R.S. 2003, terminates temporary total
disability benefits when the claimant “returns to modified employment.” However, where the modified employment pays less than the claimant’s pre-injury wage, the claimant is entitled to temporary partial disability benefits in accordance with §8-42-106, which provides that:
“In the case of temporary partial disability, the claimant shall receive sixty-six and two-thirds percent of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability . . .” (Emphasis added).
Here, the ALJ explicitly credited evidence that the claimant worked as a painter in the fall of 2001 and earned wages. Thus, the ALJ has inherently determined the claimant was less than totally disabled for at least brief period after June 6, 2001. Under these circumstances, the ALJ erred in awarding temporar total disability benefits for the entire period between June 6, 2001 and January 10, 2002 and the matter must be remanded for the entry of additional findings and new order.
On remand the ALJ shall determine the period of time the claimant was self-employed as a painter after the industrial injury. The ALJ shall also determine the wages earned by the claimant during this employment. Based upon these determinations, the ALJ shall adjust the award of temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 2002, is set aside insofar as the ALJ awarded temporary total disability benefits for the period June 6, 2001 to January 10, 2002, and the matter is remanded to the ALJ for the entry of a new order on that issue which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed January 27, 2004 to the following parties:
Larry Clemenson, 5246 Borrego Dr., Colorado Springs, CO 80918
Lovern’s Painting, 8 Iowa Ave., Colorado Springs, CO 80909
Kay Rakow, Truck Insurance Exchange, 7535 E. Hampden Ave., #300, Denver, CO 80231
Michael W. McDivitt, Esq., 19 E. Cimarron, Colorado Springs, CO 80903 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
Laurie Rottersman, Esq., State Services Section, 1525 Sherman St., 5th floor, Denver, CO 80203 (For ICAO)
BY: A. Hurtado