W.C. No. 4-298-133Industrial Claim Appeals Office.
September 30, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which denied and dismissed his claim for temporary disability benefits commencing March 9, 1996. We set the order aside and remand for the entry of a new order.
The claimant suffered an admitted injury on March 9, 1995, while operating a D-6 bulldozer in the course of his employment for Basin Resources Inc. (employer). The claimant initially lost no time from work as a result of the injury. However, the claimant testified that he was temporarily disabled from performing his regular work due to pain with neck movement, and therefore, his employer modified his employment to allow him to operate a D-8 bulldozer. On March 9, 1996, the claimant was laid off for reasons unrelated to the industrial injury, and was unable to obtain alternate employment. As a result, the claimant sought an award of temporary total disability benefits commencing March 9, 1996.
The ALJ recognized the claimant’s testimony that was physically unable to perform the duties of his regular employment at the time of the layoff. However, the ALJ found that none of the treating physicians removed the claimant from work or imposed medical restrictions which precluded the claimant from operating the D-6 bulldozer.
Furthermore, expressly relying upon Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), and Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff’d, Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication), the ALJ determined that a claim for temporary disability benefits must be supported by credible evidence in the form of an opinion from the attending physician that the claimant is medically restricted from performing his regular employment. Therefore, the ALJ concluded that the claimant failed to sustain his burden of proof, and denied the request for temporary disability benefits.
On review, the claimant contends that he sustained his burden of proof, and therefore, argues that the ALJ erred in denying the claim for temporary total disability benefits. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the claimant’s argument. Consequently, we remand the matter to the ALJ for additional findings and the entry of a new order. Section 8-43-301(8), C.R.S. 1997.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury has caused a “disability,” and that he has suffered a wage loss which, “to some degree,” is the result of the industrial disability. Section 8-42-103(1), C.R.S. (1996 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). As argued by the claimant, where a disabled employee is not at fault for the loss of employment the industrial disability is presumed to contribute “to some degree” to the employee’s subsequent wage loss. Eg. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).
Further, where the claimant establishes an initial entitlement to temporary total disability benefits, those benefits continue until terminated in accordance with §8-42-105(3)(a)-(d), C.R.S. 1997. PDM Molding, Inc. v. Stanberg supra.Section 8-42-105(3)(c) terminates temporary disability benefits when the claimant’s “attending” physician gives the claimant a written release to return to regular employment, and that release is “delivered” to the claimant. Popke v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1782, August 14, 1997).
For purposes of temporary disability benefits, a “disability” exists when the claimant is unable to perform pre-injury employment duties. PDM Molding, Inc. v. Stanberg supra; see also McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995). Moreover, the applicable law provides that the attending physician’s opinion of the claimant’s ability to perform regular employment is dispositive. Section 8-42-105(3)(c), C.R.S. 1997. Burns v. Robinson Dairy, Inc. supra.
In Ray v. Industrial Claim Appeals Office, supra, a division of the Court of Appeals held that to prove a temporary “disability” the claimant was required to present credible evidence, in the form of an opinion from her treating physician that she was physically restricted from performing the duties of regular employment. The court reasoned that if the opinion of the attending physician that the claimant is able to perform regular employment is sufficient to terminate benefits, it is also an implicit requirement to establish an initial “disability.” Relying on the court’s reasoning in Ray we have issued a series of decisions holding that, to establish an entitlement to temporary disability benefits the claimant must present proof that the attending physician has restricted him from performing regular employment.
However, in Lymburn v. Symbios Logic, ___P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997), another division of the court held that there is no statutory requirement that the claimant present medical evidence of work restrictions as a prerequisite to the recovery of temporary disability benefits. In fact, the court suggested that the claimant’s testimony alone might be sufficient to establish a temporary “disability.” Therefore, the Lymburn court held that we erred in concluding that the claimant’s failure to present medical evidence of restrictions was fatal to her claim for temporary total disability benefits. Lymburn is a published decision, and therefore, is binding. C.A.R. 35(f).
Because the ALJ expressly relied upon Ray v. Martin Marietta Corp, supra, she necessarily applied the wrong legal standard in denying the claimant’s request for temporary disability benefits. Under these circumstances, it is necessary to remand the matter to the ALJ for additional findings of fact and the entry of a new order which applies the rule announced i Lymburn.
For purposes of our remand, we agree with the claimant’s further argument that the record does not support the ALJ’s Finding of Fact 20. The ALJ found that the claimant testified that, had he not been laid off, “he had no reason to believe that he could not continue to work in the same capacity as he had before.” Contrary to the ALJ’s finding, the claimant testified that he did not believe he could have continued to do the work he was doing just before the layoff because his neck was “bothering” him more. (Tr. p. 19). Therefore, this finding cannot stand.
Nevertheless, our remand should not be understood as expressing any opinion concerning the credibility and probative weight of the claimant’s testimony concerning his inability to operate the D-6 bulldozer. Those are matters within the sole province of the ALJ. Furthermore, the absence of medical restrictions is some evidence on which the ALJ may consider in determining whether the claimant proved that he was temporarily “disabled.”
In view of our disposition it is premature to consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 18, 1996, is set aside, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed September 30, 1997 to the following parties:
Jake J. Duran, 1500 North Linden, Trinidad, CO 81091
Basin Resources, Inc., Attn: K.N. Hallows, 14300 Highway 12, Westin, CO 81019
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
James Anderson, Esq., 559 E. Pikes Peak Ave., #212, Colorado Springs, CO 80903 (For the Claimant)
David T. McCall, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondents)
BY: _______________________________