W.C. No. 4-449-941Industrial Claim Appeals Office.
January 23, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) dated August 2, 2001, which awarded temporary disability benefits. We affirm.
This matter was before us previously. In an order dated July 31, 2000, the ALJ found the claimant sustained a compensable low back injury on January 27, 2000. The claimant completed her work shift and worked two hours the next day. The claimant returned to work on January 30. However, the claimant’s employment was terminated shortly after her arrival because the employer believed the claimant called her supervisor a “bitch” in response to being asked to walk to Walgreens and buy a twelve-pack of pop. On February 3, 2000, the claimant was examined by Dr. Meyer who medically restricted the claimant from bending, stooping, lifting more than 5 pounds, pushing or pulling more than 10 pounds, and walking more than 100 yards per hour.
In a Supplemental Order dated December 19, 2000, the ALJ determined the claimant was “responsible” for the termination of her employment on January 30, 2000. Therefore, the ALJ concluded the claimant was barred from receiving temporary disability benefits under § 8-42-103(1)(g), C.R.S. 2001. That statute provides:
“In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.”
We have previously held that § 8-42-103(1)(g), and a similar provision in § 8-42-105(4), C.R.S. 2001, are applicable only when the claimant is unable to perform her regular employment and the claimant is terminated from modified employment. In our prior order, we concluded that§§ 8-42-103(1)(g) and 8-42-105(4) are not applicable to this claim because the claimant was not offered modified employment. Consequently, we set aside the ALJ’s Supplemental Order and remanded the matter for additional findings of fact concerning whether the claimant established her entitlement to temporary disability benefits. In particular, we directed the ALJ to determine whether the industrial injury disabled the claimant from performing her regular work, and whether she left work as a result of the injury.
Pursuant to that remand, the ALJ issued the order dated August 2, 2001. Relying on Dr. Meyer’s medical report dated February 3, 2000, the ALJ found the claimant was physically disabled from performing her assigned job duties on January 30, 2000, and that the employer’s request the claimant walk to Walgreens and carry back a twelve-pack of pop exceeded the claimant’s medical restrictions. Therefore, the ALJ determined the claimant left work as a result of the industrial injury and awarded temporary total disability benefits from January 30 to March 16, 2000, when the claimant reached maximum medical improvement. (We note the ALJ’s order directs the respondents to pay benefits commencing January 30, 2000, and continuing through March 16, “2001,” but that date appears to be a clerical error, since the ALJ found the claimant was placed on maximum medical improvement on March 16, 2000. The ALJ’s order will be modified accordingly.)
On this appeal, the respondents contend we misconstrued §8-42-103(1)(g) in holding the statute is applicable only if there is an offer of modified employment. Instead, the respondents argue § 8-42-13(1)(g) applies whenever the claimant is terminated for misconduct. The respondents recognize we rejected their argument in series of cases including Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001); Williams v. Team Panels International, Inc., W.C. No. 4-452-283 (June 13, 2001); McGaffey v. Assured Transportation Delivery, Inc., W.C. No. 4-434-706 (April 27, 2001); and Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497
(March 7, 2001). However, the respondents seek to preserve their argument pending the court’s review of Martinez v. Colorado Springs Disposal supra.
The respondents’ arguments do not persuade us to abandon our prior interpretation of the statute. Therefore, we adhere to our prior conclusion that § 8-42-103(1)(g) does not apply to circumstances, such as presented here, where the claimant is not terminated from post-injury modified employment.
Alternatively, the respondents contend that we erred in failing to remand the matter for application of the principles announced in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Contrary to the respondents’ argument, our remand was consistent with PDM.
It is well established that the claimant has the initial burden to prove her entitlement to temporary disability benefits. In PDM the court held the claimant’s burden of proof is sustained by proof the industrial injury caused a disability, that the claimant left work as a result of the disability, and was disabled for more than three regular work days. The term disability, as used in workers’ compensation cases, connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage earning capacity as demonstrated by the claimant’s inability to “resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This second element may be evidenced by a complete inability to work, or by restrictions which impair the claimant’s ability to perform his or her regular employment effectively and properly. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Chavez v. Manpower, W.C. No. 4-420-518 (May 11, 2000); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
PDM also holds that if the claimant was “at fault” for the termination of the post injury modified employment, the claimant is barred from receiving temporary disability benefits in connection with the post-termination wage loss unless the claimant proves the injury contributed “to some degree” to the subsequent wage loss. Because the claimant in this case was not terminated from modified employment, this part of the PDM analysis is not applicable. However, as we stated in our order of remand, the claimant was still required to prove the injury caused a disability and that she left work as a result of the disability. Consequently, our order of remand was consistent with the principles established in PDM.
Next, the respondents contend there were no medical restrictions in place at the time the claimant’s employment was terminated. Therefore, the respondents contend the ALJ erred in finding the claimant was terminated from employment she was physically unable to perform. Again, we disagree.
The claimant is not required to present medical evidence of a disability to establish entitlement to temporary disability benefits Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In fact, the claimant’s testimony alone may be sufficient to establish a disability Lymburn v. Symbios Logic, supra. However, where medical evidence is presented, it is the ALJ’s prerogative as the fact finder to determine the sufficiency and probative weight of the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Moreover, where the evidence is subject to conflicting inferences, we must defer to the ALJ’s resolution of the conflict. University Park Care Center v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 01CA0072, July 19, 2001).
We must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Substantial evidence is any probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141
(Colo.App. 1998). Under this standard we must view the evidence in the light most favorable to the prevailing party and are bound by plausible inferences drawn from the record. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
The claimant testified that she finished her work shift on the day of the injury and only worked a couple of hours the next day. She also stated that she was not scheduled to work on January 29, 2000, but that she called the employer and requested to see a physician because pain from the industrial injury rendered her unable to move. (Tr. p. 17). The claimant testified the employer denied her request for medical treatment and that she was unable to obtain medical treatment until February 3. At that time Dr Meyer imposed work restrictions which precluded the claimant from lifting more than five pounds. As the claimant’s condition improved, Dr. Meyer gradually expanded the lifting restriction. Based upon the claimant’s testimony, we conclude the ALJ could reasonably infer that as a result of the industrial injury the claimant was physically unable to lift more than five pounds prior to the date she first saw Dr. Meyer, and that she was disabled by this restriction on January 30.
Furthermore, although the claimant did not know whether a 12-pack of pop weighed more than five pounds, she stated that she had tried to lift a 12 pack of Pepsi for her mother and it made her back hurt. (Tr. p. 27). Accordingly, the claimant’s testimony supports the ALJ’s determination that lifting a 12-pack of pop exceeded her physical restrictions on January 30.
Finally, we reject the respondents’ contention that the ALJ erred in finding the claimant left work as a result of the industrial disability. The claimant denied calling her supervisor a bitch. (Tr. p. 23). However, she testified that she was unhappy about being directed to go to Walgreens because it required her to carry a 12-pack of pop which hurt her back. (Tr. p. 21). Furthermore, she stated her employer laughed at her when she reported the injury and refused to give her permission to go to a doctor. (Tr. pp. 8, 19). Therefore, insofar as the claimant was discharged because she called her supervisor a “bitch” and for demonstrating a bad attitude in response to being told to go out and buy a 12-pack of pop, there is substantial evidence in the claimant’s testimony that the underlying cause of the termination was the industrial disability. Moreover, the ALJ’s finding support the award of temporary total disability benefits commencing January 30, 2000.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 2001, is modified to provide that the respondents shall pay temporary total disability benefits through March 16, 2000. As modified, the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 23, 2002 to the following parties:
Keri Ann Grant, 2204 E. Uintah, #1, Colorado Springs, CO 80909
Robert and Judy Balaty, Speedy G’s Mexican Restaurant, 429 S. Circle Dr., Colorado Springs, CO 80918
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy