W.C. No. 4-221-098Industrial Claim Appeals Office.
October 25, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which denied their petition to suspend benefits. We affirm.
The relevant facts are undisputed. The claimant sustained an occupational disease which was treated by Dr. Klingbeil. The respondents admitted liability for temporary total disability benefits commencing August 12, 1994. In December 1994, surgical treatment was considered. However, the claimant became pregnant. As a result, Dr. Klingbeil discharged the claimant from treatment with instructions to return after the claimant’s child was delivered. Dr. Klingbeil also opined that the pregnancy delayed the claimant reaching maximum medical improvement. The claimant subsequently delivered her child and was available to resume treatment on July 27, 1995.
The respondents argued that the pregnancy constituted an efficient, intervening condition which severed the causal connection between the claimant’s temporary disability and the occupational disease. Therefore, the respondents requested permission to suspend temporary disability benefits between February 1, 1995, the date Dr. Klingbeil discontinued the claimant’s treatment, and July 27, 1995.
The ALJ rejected the respondents’ argument. The ALJ noted that the claimant was receiving temporary disability benefits at the time she became pregnant, and that the claimant’s disability during the disputed period remained due, at least in part, to the occupational disease. Therefore, the ALJ denied the petition to suspend.
On review, the respondents renew their contention that the claimant’s pregnancy was an intervening event. Under the facts of this claim, we disagree.
The respondents’ argument is based in part, upon our decision in Hale v. City of Colorado Springs, W.C. No. 3-963-532, January 13, 1995, where we concluded that the claimant’s pregnancy constituted an intervening event which severed the causal connection between the claimant’s wage loss and the industrial injury. However, in Hale v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0179, July 27, 1995) (not selected for publication), the Court of Appeals rejected our reasoning, and set aside our order. The undisputed facts in this claim are similar to the circumstances presented in Hale. Consequently, we are persuaded that the Court of Appeals’ analysis in Hale is dispositive of this claim, and conclude that the ALJ did not err in failing to suspend the claimant’s benefits.
As in this claim, Hale involved an occupational disease which rendered the claimant temporarily and totally disabled for several months. The claimant later returned to modified employment and used prescription medication to manage her ongoing pain from the occupational disease. While restricted to modified employment, the claimant became pregnant, and stopped taking the prescribed medication. Without the medication, the claimant was unable to perform the duties of her employment and was subsequently released from work. The claimant was not available to return to work until after the delivery of her child.
The Hale court rejected our conclusion that the claimant was not entitled to temporary disability benefits during the pregnancy. In so doing, the Court of Appeals expressly relied upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), where the Supreme Court concluded that the claimant’s burden to establish a causal connection between a work-related injury and a subsequent wage loss is established when the work-related injury contributes “in some degree” to the temporary wage loss. The Hale court added that the work-related injury need not be the “sole” or “immediate” cause of the wage loss, and the claimant is entitled to temporary disability benefits unless the work-related injury plays no part in the subsequent wage loss. Consequently, the Hale court concluded that a pregnant claimant is not precluded from obtaining temporary disability benefits if the industrial injury contributes, at least in part, to the wage loss during the pregnancy.
Here, the ALJ determined that the claimant’s wage loss after February 1, 1995 was due “in part” to the occupational disease, and this determination is supported by substantial evidence. See § 8-43-301(8), C.R.S. (1995 Cum. Supp.). Furthermore, the respondents do not dispute the ALJ’s determination that they failed to sustain their burden to prove that the claimant’s benefits terminated by operation of § 8-42-105(3), C.R.S. (1995 Cum. Supp.). Under these circumstances, the ALJ did not err in failing to suspend the claimant’s disability benefits, regardless of whether the claimant’s pregnancy also played a part in the claimant’s temporary wage loss.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
____________________________________ 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, 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 25, 1995 to the following parties:
Roberta J. Gallegos, 6064 Utica St., Arvada, CO 80003
Owens Corning Fiberglas Corp., 5201 Fox St., Denver, CO 80216-1603
Ins. Co. of the State of Pennsylvania, c/o Crawford Co., Attn: Brenda Hickey, P.O. Box 6502, Englewood, CO 80155-6502
Richard T. Goold, Esq., 1017 S. Gaylord St., Denver, CO 80209 (For the Claimant)
Cindy Slevin, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________