W.C. No. 4-449-941Industrial Claim Appeals Office.
May 17, 2001
ORDER OF REMAND
The claimant seeks review of a Supplemental Order issued by Administrative Law Judge Wheelock (ALJ) which determined the claimant is not entitled to temporary disability benefits. We set aside the order and remand the matter for further proceedings.
In an order dated July 31, 2000, the ALJ found that the claimant sustained a back injury on January 27, 2000, in her employment as a manager/driver. The claimant reported the injury to the respondent-employer, then completed her work shift that day. The ALJ found the claimant only worked two hours the following day because of bad weather, and that she was scheduled to be off work on January 29. The claimant then worked on January 30, and the ALJ found the claimant’s employment was “terminated for cause” because of insubordination toward the day supervisor.
The claimant subsequently sought treatment from Dr. Meyer, who imposed restrictions and prescribed medication for her back condition. Based on the claimant’s testimony that the medication was preventing her from obtaining other employment, because it interfered with her ability to complete job applications, the hearing officer determined the injury was contributing “to some degree” to the claimant’s wage loss. The ALJ also found the employer had not offered the claimant modified employment. Relying on PDM Molding v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ concluded the claimant is entitled to temporary total disability benefits from January 31, 2000, until she attained maximum medical improvement on March 16, 2000.
The respondents appealed the ALJ’s order, arguing that the findings establish the claimant was responsible for the termination of her employment, and that the claimant is therefore not entitled to temporary disability benefits based on the subsequent wage loss under §8-42-103(1)(g), C.R.S. 2000. That subsection, which is applicable to injuries occurring on or after July 1, 1999, provides that:
“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.”
See also § 8-42-105(4), C.R.S. 2000 , which contains an identical provision.
The ALJ then issued a Supplemental Order dated December 19, 2000, in which she concluded under § 8-42-103(1)(g) the claimant is not entitled to temporary total disability benefits from January 30 to March 16, 2000, because she was terminated for cause on January 30. The claimant appealed the Supplemental Order’s denial of benefits.
The claimant contends it is implicit the foregoing statute applies only to terminations from employment that the injured worker is capable of performing, and that the evidence here shows she was not capable of performing her duties in this employment because of her back injury. The claimant therefore argues her wage loss was attributable to the injury, rather than the termination, and that she is entitled to temporary disability benefits. We agree that this statute is not applicable here.
We have previously held that §§ 8-42-103(1)(g) and 8-42-105(4), C.R.S. 2000, are applicable only when there has been a termination of modified employment that the disabled worker is able to perform. One of the requirements for establishing entitlement to temporary disability benefits is a showing that the claimant “left work as a result of the injury,” meaning that the claimant is unable to perform the work that she was performing at the time of the injury. See § 8-42-103(1), C.R.S. 2000; PDM Molding v. Stanberg, supra; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Thus, in referring to a “temporarily disabled” employee, it is apparent that §§ 8-42-103(1)(g) and 8-42-105(4) are intended to apply to workers who are not able to perform their regular work as a result of the injury. The wage loss experienced by such workers could be caused by termination of employment only if they were capable of performing and earning wages in such employment. Thus, the statutes must contemplate the termination of modified employment which the disabled worker is capable of performing.
Here, the claimant was not offered modified employment, so §§8-42-103(1)(g) and 8-42-105(4) are not applicable. Consequently, the ALJ’s denial of benefits based on these statutory provisions must be set aside. That does not necessarily mean the claimant is entitled to temporary disability benefits, however.
As we stated, a requirement for establishing entitlement to temporary disability benefits is a showing that the injured worker “left work as a result of the injury,” meaning that the claimant is unable to perform the work that she was performing at the time of the injury. Here, the claimant continued working until she was discharged, and the ALJ did not find the claimant was unable to perform her regular work, or that she left work because of the injury. Nor can we say the ALJ’s findings or the evidence would compel such a determination. We note that the ALJ’s original award of temporary disability benefits was based on evidence that the claimant’s medication was impairing her ability to apply for other jobs, not a determination that the claimant was unable to perform her usual work in this employment. Cf. PDM Molding v. Stanberg supra (ALJ found claimant was unable to return to work and perform his usual duties).
Consequently, in order to resolve the claimant’s entitlement to temporary disability benefits, the matter must be remanded to the ALJ for further findings. On remand, the ALJ shall determine whether the industrial injury disabled the claimant from performing her regular work, and whether she left work as a result of the injury. The ALJ shall then determine whether the conditions for an award of temporary total disability benefits have been established. Lymburn v. Symbios Logic supra.
IT IS THEREFORE ORDERED that the denial of temporary disability benefits in the ALJ’s Supplemental Order dated December 19, 2000, is set aside, and the matter is remanded to the ALJ for a new determination of the claimant’s entitlement to temporary disability benefits, in accordance with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed May 17, 2001 to the following parties:
Keri Grant, 2512 E. Dale St., #1, Colorado Springs, CO 80909
Robert Balaty and Judith Balaty d/b/a Speedy G’s Mexican Food, 3609 Austin Bluff Pkwy., #15, 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