W.C. No. 4-284-475Industrial Claim Appeals Office.
January 28, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which awarded the claimant temporary total and temporary partial disability benefits. We affirm.
The essential facts are undisputed. On February 8, 1996, the claimant sustained a compensable injury while performing his duties as a painter’s helper. As a result, the treating physician imposed restrictions which precluded the claimant from performing his regular duties. Thereafter, on February 13, 1996, the claimant was terminated from his employment for reasons which were not his fault. The claimant then remained unemployed until May 3, 1996, when he obtained part-time restaurant work within his restrictions.
The claimant is a Mexican citizen. Further, he does not “possess legal work status in the United States.”
Under these circumstances, the ALJ held that the claimant is entitled to temporary total disability benefits for the period February 13, 1996 through May 2, 1996, and temporary partial disability benefits thereafter. The ALJ rejected the respondents’ argument that the claimant’s lack of “legal work status” constitutes an “intervening event” sufficient to sever the causal relationship between the industrial injury and the claimant’s wage loss. In support of this determination, the ALJ cited the claimant’s testimony that he was able to obtain part-time work in the restaurant.
On review, the respondents contend that the ALJ erred in awarding temporary disability benefits subsequent to the claimant’s termination from employment. The respondents argue that, because the claimant lacks legal work status, he suffers from a “legal disability” which is necessarily the cause of his wage loss. In support of this proposition, the respondents cite our decision in Ceniceros v. Excel Corp., W.C. No. 4-022-577, issued on August 13, 1992. We find no error.
In Ceniceros, we held that a claimant who was legally precluded from earning wages due to his immigration status was not entitled to temporary disability benefits. Relying principally o Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1996), we reasoned that the claimant’s post-injury loss of earnings was necessarily the result of his immigration status, and therefore, not causally related to the industrial injury.
However, we agree with the claimant that the Supreme Court’s decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), undermines the rationale of Ceniceros. In PDM, the court held that a claimant who is at fault for the loss of employment in which the injury arose is nevertheless entitled to temporary disability benefits if the post-separation wage loss is “to some degree” the result of the industrial injury. The question of whether the injury is a partial cause of the post-separation wage loss is a factual matter for resolution by the ALJ. PDM Molding, Inc. v. Stanberg, supra; Horton v. Dill, ___ P.2d ___ (Colo.App. 96CA0284, November 29, 1996).
Moreover, as indicated in Horton v. Dill, supra, the PDM
opinion significantly undermines the authority of Roe v. Industrial Commission, and Monfort of Colorado v. Husson, 725 P.2d 67
(Colo.App. 1986). Roe and Monfort proceeded on the assumption that some types of intervening events are sufficient to sever the causal relationship between the injury and the wage loss without regard to the actual impact of the injury on the claimant’s subsequent ability to earn wages. PDM repudiates that notion, and focuses the inquiry on whether the physical limitations resulting from the injury are a partial cause of the claimant’s inability to secure employment at pre-injury wage levels.
Thus, in light of PDM Molding, Inc. v. Stanberg, we conclude that our holding in Ceniceros v. Excel Corp. was unduly restrictive. Ceniceros holds that a claimant’s lack of “legal work status” is the type of intervening event which permanently severs any relationship between the industrial injury and the claimant’s loss of earnings. However, in light of PDM Molding, Inc. v. Stanberg, supra, we conclude that the correct inquiry is whether, to some degree, the claimant’s loss of wages can be attributed to the effects of the industrial injury.
Here, the ALJ found that the claimant’s post-injury wage loss is not solely the result of his work status, but also the result of the industrial injury. This conclusion is fully supported by the evidence that the claimant was able to find work, despite his immigration status, both before and after the industrial injury. Thus, it may be inferred that the injury was impairing the claimant’s ability to earn wages at the pre-injury rate, and that the claimant’s work status was not the sole factor causing the wage loss.
In light of this disposition, we need not consider that portion of the ALJ’s order holding that the claimant is entitled to temporary disability benefits because “entitlement to Workers’ Compensation benefits is not derived from a worker’s immigration status, but from his status as a worker.”
IT IS THEREFORE ORDERED that the ALJ’s order dated June 27, 1996, 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 January 28, 1997 to the following parties:
Angel Gallegos, 600 S. Dayton, #12-306, Denver, CO 80231
Champion Auto Body, 235 Broadway, Denver, CO 80203-3918
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Elaine Corey, Esq., 1750 High St., Denver, CO 80218 (For the Claimant)
J. Barton Maxwell, Esq., 1225 17th St., Ste. 2800, Denver, CO 80202 (For the Respondents)
By: ______________________________________________