W.C. No. 4-204-460Industrial Claim Appeals Office.
October 6, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) insofar as it terminated his entitlement to temporary disability benefits. We reverse.
The claimant suffered compensable injuries during an automobile accident on February 9, 1994. As a result of the injuries, the claimant was not released to perform modified duty until September 14, 1994. The employer testified that as of September 14, it had “light duty” work within the claimant’s medical restrictions available, but stated that no such work was offered to the claimant because his employment had been terminated one week after the accident. The termination was based upon the employer’s determination that the claimant’s injuries were caused by the claimant’s willful violation of the employer’s rule prohibiting the use of alcohol on the job.
The record also reveals that the respondents filed general admissions of liability which provided for the payment of temporary total disability benefits between February 18 and June 14, 1994, and temporary partial disability benefits thereafter, subject to a 50 percent penalty under §8-42-112(1)(c), C.R.S. (1995 Cum. Supp.) (injury due to intoxication). See
Corrected General Admission of Liability dated August 12, 1994. At the October 27, 1994 hearing before the ALJ, the respondents sought to withdraw their admissions of liability for temporary disability benefits based upon the evidence that the claimant’s employment was terminated for reasons unrelated to the industrial injury.
The ALJ found that the claimant’s injuries were caused by the claimant’s intoxication, and the claimant’s willful violation of the employers’ rule which prohibited the use of alcoholic beverages during employment. Therefore, based upon Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev’d on other grounds, 783 P.2d 273 (Colo. 1989), the ALJ determined that the claimant was “at fault” for his employment termination, and that the claimant’s post-termination wage loss was unrelated to the industrial injury. Consequently, the ALJ concluded that the claimant was not entitled to temporary disability benefits subsequent to his employment termination, and granted prospective relief from the admissions of liability.
On review, the claimant contests the ALJ’s application of Monfort and contends, inter alia, that he is entitled to temporary total disability benefits until terminated in accordance with § 8-42-105(3), C.R.S. (1995 Cum. Supp.). We agree.
The claimant bears the initial burden of proving his entitlement to temporary total disability benefits. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). That burden requires proof that the claimant’s wage loss is causally connected to the industrial injury. The claimant meets that burden by proof that he is physically unable to perform regular and modified employment as a result of the injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995); J.D. Lunsford v. Sawatsky, 780 P.2d 76
(Colo.App. 1989). Section 8-42-105(3) provides that once the claimant has met his burden of proof temporary total disability benefits “shall continue” until the occurrence of one of the events enumerated in subsections 8-42-105(3)(a)-(d). PDM Molding, Inc. v. Stanberg, supra McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
In Monfort of Colorado v. Husson, supra, the court held that where an injured employee is “at fault” for the loss of the employment out of which the injury arose, the employee’s subsequent wage loss emanates from the employee’s actions which caused the wage loss and not the industrial injury. The Monfort court concluded that under these circumstances the termination severs the causal connection between the injury and the subsequent wage loss, and thus, the claimant is not eligible for temporary total disability benefits in connection with the post-termination wage loss. However, in PDM Molding, Inc. v. Stanberg, supra, the court concluded that a termination for fault does not automatically bar the claimant from receiving temporary total disability benefits if the work-related injury, “to some degree,” contributes to the claimant’s subsequent wage loss. Furthermore, the PDM court held that “fault” for a separation is “an initial determination” which must be made prior to the application of § 8-42-105.
Here, there is no dispute with the ALJ’s determination that the claimant was at fault for his employment termination. However, the claimant was not released to return to regular or modified employment at the time of the termination. Rather, the attending physician, Dr. Walczak, did not release the claimant to modified employment until September 14, 1994. See Gonzales v. National King Coal, Inc., W.C. No. 3-114-636, September 26, 1995 (attending physician’s opinion concerning the claimant’s physical ability to perform regular or modified employment is binding).
Because the claimant was physically unable to return to employment at the time of the employment termination, the termination did not sever the causal connection between the industrial injury and the claimant’s wage loss. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (retirement is not intervening event if claimant is totally disabled after retirement). In other words, the industrial injury contributed at least “to some degree” to the claimant’s post-termination wage loss because the claimant was physically unable to return to any employment. Consequently, the claimant’s employment termination did not justify a termination of temporary total disability benefits, and the pertinent issue is whether the claimant’s entitlement to temporary total disability benefits was subsequently terminated by the operation of § 8-42-105(3).
Insofar as pertinent, subsection 8-42-105(3)(d) terminates temporary total disability benefits when:
“The attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment.”
We have previously concluded that § 8-42-105(3)(d) requires the employer to communicate the availability of modified employment to the claimant. Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995. Moreover, the offer must be made in writing. PDM Molding, Inc. v. Stanberg, supra.
Although the ALJ found that the employer had employment available to the claimant, there is no evidence and no assertion that the employer offered such employment to the claimant. Tr. pp. 28, 71, 74, 75. Therefore, the ALJ’s finding that the respondents’ had a “job available” within the claimant’s medical restrictions does not support the termination of benefits under § 8-42-105(3)(d), and the ALJ erred insofar as he terminated the claimant’s temporary disability benefits based upon the claimant’s release to modified employment.
Moreover, there is no assertion that the claimant was released to regular employment or reached maximum medical improvement prior to October 27, 1994. However, at the hearing the claimant admitted that he was working part-time. Tr. p. 37. Therefore, the claimant necessarily concedes that his entitlement to temporary total disability benefits terminated by operation of § 8-42-105(3)(b) [return to regular or modified employment], and that he is limited to temporary partial disability benefits subsequent to June 14, 1994. See University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994) (decided under prior law). Under these circumstances, the respondents are required to pay temporary disability benefits in accordance with their Corrected Admission of Liability. Section 8-43-203(2), C.R.S. (1995 Cum. Supp.) (“if any liability is admitted, payments shall continue according to admitted liability”).
In view of our disposition, we do not consider the claimant’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 4, 1994, is reversed. The respondents shall pay temporary disability benefits pursuant to their Corrected General Admission of Liability dated August 12, 1994, until otherwise ordered, or terminated by operation of law.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 6, 1995 to the following parties:
Michael R. Dooley, 2 Lee Road #4, Astoria, OR 97103
Sutherland Lumber Co., 901 W. Eighth St., Pueblo, CO 81003-2099
Lumbermans Underwriting Alliance, Attn: Tania Scruggs, 15055 S. W. Sequoia Pkwy., Ste. 120,
Portland, OR 97224
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
Jordan S. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondent)
BY: _______________________