Industrial Claim Appeals Office.
W.C. No. 4-508-831
January 13, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded temporary disability benefits. The respondents contend the ALJ’s findings do not support the conclusion that the claimant was disabled. We reverse.
The claimant was employed as a construction supervisor and computer worker. On July 21, 2001, he sustained compensable head and neck injuries. By August 31, 2001, one of the claimant’s treating physicians released the claimant to return to full duty, and the ALJ found that from that date forward the claimant “performed his regular duties on a full-time basis.” (Finding of Fact 2).
However, the claimant remained under active medical treatment for his injuries. These treatments sometimes interfered with the claimant’s work schedule and the employer directed the claimant to attempt to schedule medical appointments which did not conflict with work. However, the claimant was not always able to comply with the employer’s instruction.
On January 9, 2002, the claimant was placed under medical restrictions involving cervical flexion and extension. However, he was not restricted from performing the duties of his regular employment. The ALJ determined that the claimant was able to continue performing his regular duties despite the restrictions. (Finding of Fact 9).
On February 11, 2002, the employer discharged the claimant. The ALJ found the reason for the discharge was that the claimant “was not able to be at the job site at all assigned times due to the medical appointments claimant was required to attend for treatment of his work injury.”
The claimant sought an award of temporary total disability benefits commencing February 11, 2002. The ALJ noted the claimant was required to prove he was “disabled” in order to receive temporary disability benefits. The ALJ concluded the claimant proved the “wage loss resulting from the termination from employment is causally related to [the claimant’s] work injury” because the termination was based on the claimant’s inability to schedule medical appointments outside of working hours. The ALJ reached this conclusion even though he noted the physical restrictions “may not have precluded claimant from performing his regular job.” Consequently, the ALJ awarded temporary disability benefits commencing February 11.
On review, the respondents argue the ALJ’s findings of fact do not support the conclusion the claimant was “disabled” commencing February 11, 2002. The respondents reason that the claimant’s ability to perform the regular duties of his employment without restriction is legally inconsistent with a finding of disability. We agree with this argument.
Section 8-42-103(1)(a), C.R.S. 2002, establishes the right to temporary disability benefits if the injury causes disability, the disability lasts more than three days, and the claimant leaves work as a result of the injury. PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The statute contains no formal definition of “disability.” However, the cases have reviewed various provisions of the Act and formulated a definition of temporary “disability.”
In Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999), the court stated the “disability concept” is characterized by two elements. These two elements are medical incapacity as evidenced by some loss of bodily function, and loss of wage-earning capacity “evidenced by an employee’s inability to resume his or her prior work.” Id. at 649. Of course, disability may be evidenced by medical restrictions which completely prohibit the claimant from working, or restrictions which impair the claimant’s ability effectively and properly to perform the regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595
(Colo.App. 1998); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999). These principles are consistent with the statutory provisions concerning termination of temporary total disability benefits. Under § 8-42-105(3)(b) and (c), C.R.S. 2002, temporary total disability benefits terminate when the claimant “returns to regular employment” or the “attending physician gives the claimant a release to return to regular employment.” Thus, even if the claimant’s condition is not stabilized at maximum medical improvement, temporary total disability benefits end “if claimant is able to return to work and is, therefore, no longer suffering a temporary wage loss as a result of the injury.”Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637, 639
(Colo.App. 1997).
Here, the ALJ expressly found the residual restrictions from the industrial injury do not impair the claimant’s ability to perform the regular duties of his employment. Consequently, the claimant failed to establish any temporary disability existed on February 11. It is true, as the ALJ found, that the claimant’s termination was related to his prior need to attend medical appointments for treatment of the industrial injury. However, temporary disability benefits are not paid simply because the claimant was discharged from employment after the injury and the discharge had its origin in circumstances related to the injury. Rather, as the respondents argue, proof of a disability, as that term is defined by the cases, is a prerequisite to payment of temporary total disability benefits under § 8-42-103(1). Cf. McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995) (where claimant released to regular employment temporary disability benefits terminated even though effects of the injury precluded claimant from driving to the job site).
We have considered the claimant’s arguments in support of the order and do not find them persuasive. In particular, we are satisfied by Findings of Fact 2 and 8 that the ALJ found the claimant was able to perform his regular employment and was not medically restricted from doing so.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 10, 2002, is reversed insofar as it ordered the payment of temporary total disability benefits commencing February 11, 2002.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,CO 80203, by filing a petition for review with the Court, within twenty(20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ______January 13, 2003_______ to the following parties:
James Davis, 539 Mountain Oak Court, Clifton, CO 81520
The Energy Office, Inc., 128 So. 5th St., Grand Junction, CO 81501-2602
Mike Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Joanna C. Jensen, Esq., 225 N. 5th St., #1010, P.O. Box 4859, Grand Junction, CO 81502 (For Claimant)
John H. Stevens, Esq., 600 17th St., #1600N, Denver, CO 80202
By: __________A. Hurtado__________