W.C. Nos. 4-191-613, 4-199-271, 4-207-423Industrial Claim Appeals Office.
April 9, 1996
FINAL ORDER
The Greeley Center for Independence (Greeley Center), and its insurer, the Colorado Compensation Insurance Authority (CCIA respondents), seek review of a final order of Administrative Law Judge Gandy (ALJ) insofar as it awarded temporary disability benefits. We affirm.
Our previous Order of Remand dated October 18, 1995, contains an extensive statement of facts, and we will not repeat them here. On remand, the ALJ found that the claimant’s temporary disability, commencing in February 1994, was causally connected to the injury which she sustained while employed by the Greeley Center, not a new injury which she sustained while later employed by respondent Fairacres Manor (Fairacres). Consequently, the ALJ ordered the CCIA respondents to pay temporary total disability benefits commencing February 2, 1994.
In addition, the ALJ found that the claimant returned to “light duty” employment with Fairacres on November 23, 1994. The claimant worked only two hours per day, five days per week, “feeding patients.” The claimant subsequently quit this employment upon learning that it would disqualify her from receiving other disability benefits.
On review, the CCIA respondents argue that the ALJ’s order should be set aside insofar as it requires the payment of temporary disability benefits following the claimant’s “voluntary termination from her employment at Fairacres.” They reason that the claimant’s “voluntary” separation severed the causal relationship between the injury and the subsequent wage loss. In any event, the CCIA asserts that there is no medical evidence that the claimant was restricted from continuing her employment with Fairacres. We find no error.
It is true that a temporarily disabled claimant who relinquishes employment within her restrictions severs the causal relationship between the industrial injury and the subsequent wage loss. However, the claimant is not necessarily disqualified from receiving temporary disability benefits if, to some degree, the injury contributes to the claimant’s subsequent inability to secure employment at pre-injury wage levels. See PDM Molding, Inc. v. Standberg, 898 P.2d 542 (Colo. 1995).
Here, the ALJ found, on substantial evidence, that the claimant was profoundly disabled at the time she quit her light duty employment with Fairacres in November 1994. She was working in a restricted capacity on a part-time basis. Conversely, at the time of the industrial injury in July 1993, the claimant was employed as a nurse’s aide at the admitted average weekly wage of $236.16. This work required substantial lifting.
In these circumstances, it is implicit in the ALJ’s order that he believed the claimant’s loss of wages, subsequent to the November 1994 separation from employment, was “to some degree” caused by the industrial injury. Thus, the fact that the claimant might be considered at “fault” for voluntarily separating from Fairacres does not rule out the award of temporary disability benefits.
The CCIA respondents’ argument that the claimant did not prove that she was “medically restricted” from performing her light-duty job with Fairacres is irrelevant. The claimant was clearly restricted from performing her pre-injury employment at Greeley Center. Therefore, the only issue to be settled was whether the claimant’s wage loss, after the separation from Fairacres, was “to some degree” caused by the injury.
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 29, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 9, 1996 to the following parties:
Kristy L. Good, 920 36th Ave., Greeley, CO 80634
Greeley Center for Independence d/b/a Patient Advocacy Team, 1734 8th Ave., Greeley, CO 80631
Fairacres Manor, Inc., Attn: Randy Weber, N.H.A., 1700 18th Ave., Greeley, CO 80631-5152
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Alexsis Risk Management, Attn: Mary Carter, 1099 18th St., #3050, Denver, CO 80202-1930
Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631
(For Claimant)
Ann McEntire, Esq., 1430 Larimer Square, #400, Denver, CO 80202
(For Respondent Fairacres Manor, Inc.)
By: _____________________