W.C. No. 4-281-397Industrial Claim Appeals Office.
June 9, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which denied their petition to suspend the claimant’s temporary disability benefits. We affirm.
The ALJ found that the claimant sustained a compensable injury on January 12, 1996, and was temporarily and totally disabled until he attained maximum medical improvement on October 1, 1996. At the hearing, the parties stipulated that the claimant, a foreign national, was an “undocumented worker” without legal authorization to work in the United States at the time of the injury and thereafter.
The ALJ rejected the respondents’ argument that temporary disability benefits should be suspended based on the claimant’s lack of work authorization. The ALJ held that none of the reasons for terminating temporary disability benefits under § 8-42-105(3), C.R.S. (1996 Cum. Supp.) existed, and that it would be “patently unfair to allow employers to hire undocumented workers, reap profit from their labors and then escape any liability for work-related injuries because of their legal residency status.” Finally, the ALJ noted that the Act does not establish “residency status” as a basis for terminating temporary benefits.
On review, the respondents reiterate their argument that the claimant’s lack of work authorization constitutes a legal bar to an award of temporary disability benefits. In making this argument, the respondents recognize that we reached a contrary conclusion in Gallegos v. Champion Auto Body, W.C. No. 4-284-475
(January 28, 1997), but they assert that Gallegos was wrongly decided.
In Gallegos, we relied on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), for the proposition that loss of legal work status does not preclude a subsequent award of temporary disability benefits if the claimant establishes that physical limitations caused by the injury are partially responsible for the wage loss. The respondents’ arguments notwithstanding, we decline to depart from our conclusion that PDM Molding, Inc. v. Stanberg
is applicable in cases where respondents rely on legal work status as a basis for denying temporary disability benefits. As we held in Gallegos, the proper focus is on the factual cause or causes of the wage loss, not merely the legal status of the claimant.
Moreover, we disagree with the respondents’ argument that the ALJ’s order must be set aside because the ALJ failed to apply the factual analysis mandated by PDM Molding. Here, it was undisputed that, at the time of the injury, the claimant lacked legal work status. Nevertheless, the claimant was able to earn a wage in his job with the respondent-employer.
It follows that the claimant’s post-injury wage loss was not caused by his lack of work status, but must be attributed to the injury itself. Put another way, the claimant’s lack of work status did not “intervene” between the injury and the wage loss so that the loss of work status could be considered the cause of the claimant’s post-injury wage loss. Since the ALJ’s order is correct as a matter of law, we need not consider his reasoning Cf. Horton v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996) (where claimant was temporarily totally disabled at time of “intervening” health problem, the health problem was not legal cause of the wage loss under PDM).
In light of this conclusion we need not address the claimant’s argument that because “aliens” are considered to be “employees” under the definition set forth in § 8-40-202(1)(VI)(b), C.R.S. (1996 Cum. Supp.), they are necessarily entitled to temporary disability benefits regardless of their legal work status.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 14, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed June 9, 1997 to the following parties:
Gilberto Estrada, 911 Sopris Ave., Sp. 13, Carbondale, CO 81623
Hansen Construction, Inc., P.O. Box 10493, Aspen, CO 81612-7329
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Gene Dackonish, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
William G. Kaufman, Esq. Donald J. Kaufman, Esq., 401 23rd St., Ste. 302, Glenwood Springs, CO 81601 (For the Claimant)
By: _______________________________