W.C. Nos. 4-114-768, 4-221-453Industrial Claim Appeals Office.
May 8, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) which denied and dismissed her request for benefits in these consolidated claims. We affirm.
From conflicting evidence the ALJ made the following factual determinations. The claimant sustained an admitted right rotator cuff injury on October 31, 1991 during her part-time employment at United Parcel Service (UPS). At the time of the injury the claimant was also employed full-time at the Napa Denver Warehouse (Napa). Due to the rotator cuff injury the claimant was temporarily disabled from both jobs.
In January 1992 the claimant obtained a release from the attending physician, Dr. Rokicki to return to regular work at Napa. The claimant “rushed” back to work due to financial pressures. Although the claimant was not physically ready to return to work, she was able to perform the duties of her regular employment at Napa, and her condition from the 1991 injury continued to improve. In April 1992, Dr. Rokicki determined the claimant to be at maximum medical improvement (MMI) from the 1991 injury and gave the claimant a full release to return to work.
Upon returning to work for Napa in January 1992, the claimant initially worked as a stocker. Later, the claimant requested a job change to the “packing line,” even though it required heavier work. The duties required on the jobs of stocker and packer both aggravated the claimant’s condition from the 1991 injury and caused a temporary worsening of the claimant’s condition in the nature of an occupational disease.
In July 1992 the claimant was fired from her Napa employment due to excessive absenteeism. However, there is no “persuasive evidence” that the absences were due to any disability resulting from the occupational disease. To the contrary, the claimant did not complain of problems with her shoulder prior to the termination, and indicated a desire to continue working on the packing line.
Further, the claimant testified that six months after leaving Napa her condition was better than it had been in January 1992. The claimant also played softball during the 1992, 1993 and 1994 seasons.
Based upon these findings the ALJ determined that the claimant’s current need for medical treatment is not causally related to either the occupational disease or the 1991 injury. The ALJ also determined that the claimant was at fault for the termination of her employment at Napa and would still be working at Napa if not for the termination for cause. Therefore, the ALJ determined that the claimant’s post-termination wage loss was not the result of any disability from the occupational disease. Consequently, the ALJ denied the claim for medical benefits and temporary disability benefits after July 14, 1992. However, the ALJ awarded temporary partial disability benefits for lost wages between January 1992 and MMI when the claimant was not released to return to work at UPS.
On review the claimant first contends that all of the medical providers attributed the worsening of the claimant’s condition to the 1991 injury and thus, the claimant argues that there is no evidence to support the ALJ’s finding that the claimant sustained an “occupational disease” as a result of her employment at Napa. We reject this argument.
Contrary to the claimant’s argument, substantial evidence is not limited to “medical” evidence. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). Rather, a claimant’s testimony, if credited, may alone constitute substantial evidence to support the ALJ’s determination concerning the cause of the claimant’s condition. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that his employment caused his heart attack).
Here, the claimant’s testimony contains substantial evidence to support the ALJ’s finding that the duties performed on the packing line and as a stocker aggravated the claimant’s pre-existing condition from the shoulder injury. The claimant testified that the job of stacker required her to perform overhead work filling shelves and that the packing line required her perform overhead work and lift items beyond her ability. (Tr. April 25, 1995, pp. 21-23, 28, 29, 41, 42, 45, 47-48).
Furthermore, the ALJ’s inference is buttressed by Dr. Rokicki’s testimony that the claimant had fully recovered from the 1991 injury by February 5, 1992, and that overhead lifting would aggravate the claimant’s shoulder injury. (Rokicki Depo. pp. 19, 35). Consequently, we are bound by the ALJ’s factual determination concerning the cause of the claimant’s worsened condition.
Moreover, the ALJ’s findings of fact support his determination that the claimant sustained an “occupational disease” as defined by §8-40-201(14), C.R.S. (1995 Cum. Supp.), and the claimant’s argument to the contrary is without merit. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). The ALJ implicitly rejected the notion that the worsening of the claimant’s condition was attributable to the specific incident on October 31, 1991. Instead, the ALJ’s findings reflect his determination that the worsening of the claimant’s condition resulted directly from the “conditions under which work was performed” at Napa and was a “natural incident” of that employment. See Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993) (cause of accidental injury is specific trauma and occupational disease is caused by the conditions of employment).
Next, the claimant contends that there is not substantial evidence to support the ALJ’s finding that the claimant was at fault for the termination of her employment at Napa. The claimant also argues that the ALJ’s failure to award temporary disability benefits after July 14, 1992 is contrary to the principles established in PDM Molding Inc. Stanberg, 898 P.2d 542 (Colo. 1995). We conclude that regardless of whether the claimant was at fault for the employment termination, the ALJ did not err in failing to award temporary disability benefits in connection with the claimant’s post-termination wage loss. Therefore, we need not determine whether the record supports the ALJ’s finding of “fault.”
Under § 8-42-105 C.R.S. (1995 Cum. Supp.) the claimant is entitled to temporary disability benefits where the injury or occupational diseas causes disability longer than three days and the claimant suffers a wage loss as a result of the injury. PDM Molding Inc. Stanberg, supra. The claimant bears the burden to prove a causal connection between the industrial injury and the wage loss to recover temporary disability benefits. PDM Molding Inc. v. Stanberg, supra; Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995).
PDM Molding, Inc. v. Stanberg, supra. sets forth the procedure for determining whether the claimant has sustained her burden of proving a causal connection where the claimant “suffers a work-related injury and is subsequently terminated from the employment during which the injury occurs.” In PDM the Supreme Court stated that under such circumstances, there must an “initial determination” concerning whether the “termination was for fault.” Specifically, PDM held that where the claimant is determined to be “at fault” the claimant must prove that the subsequent wage loss is “to some degree” attributable to the industrial injury to establish the requisite causal connection. PDM Molding Inc. Stanberg, 898 P.2d at 549.
Here, the ALJ was not persuaded that the claimant sustained her burden to prove the requisite causal connection between the post-termination wage loss and either the 1991 injury or the occupational disease. Although the evidence is subject to conflicting inferences, the ALJ’s findings of fact reflect a plausible interpretation of the record, and therefore, must be upheld. Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981) (where there is no direct evidence the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances).
PDM further provides that once a causal connection between the industrial injury and the temporary wage loss is established, temporary disability benefits are payable unless terminated by operation of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.). Insofar as pertinent, subsection 8-42-105(3)(b) terminates disability benefits when the “attending physician gives the employee a written release to return to regular employment.” Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), cert. denied, March 4, 1996.
Here, the record supports the ALJ’s finding that Dr. Rokicki released the claimant to return to regular employment in April 1992. Furthermore, the ALJ did not find that the claimant was subsequently restricted from performing the duties of her regular employment. Accordingly, even if we assume that the claimant was not at fault for her termination of employment at Napa, the ALJ’s findings compel a conclusion that the claimant’s entitlement to temporary disability benefits terminated by operation of §8-42-105(3)(c). Consequently, the ALJ’s order denying temporary disability benefits for the period subsequent to July 14, 1992 is not inconsistent with PDM.
Moreover, the occurrence of any one of the events listed in §8-42-105(3) terminates temporary disability benefits. Therefore, the evidence that Dr. Rokicki rescinded his April 1992 determination of MMI does not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 22, 1995, is affirmed.
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 May 8, 1996 to the following parties:
Deborah Fisher, 1560 Gilpin, Apt. #2, Denver, CO 80218
Ethel Oatman, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Napa Denver Warehouse, Genuine Auto Parts, 2101 E. Highway 224, Denver, CO 80229-6910
Steven Pingree, Liberty Mutual Insurance Co., 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Ruth Taylor, Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762
Dawn M. Stockton, Esq. John M. Connell, Esq., 1290 Broadway, #705, Denver, CO 80203 (For the Liberty Respondents)
Barbara J. Furutani, Esq., 1732 Race St., Denver, CO 80206 (For the Claimant)
Lawrence D. Blackman, Esq. Christina M. Middendorf, Esq., 1290 Broadway, Suite 708, Denver, CO 80203 (For the Travelers Respondents)
BY: _______________________