W.C. No. 4-443-973Industrial Claim Appeals Office.
December 18, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) insofar as it awarded temporary total disability benefits commencing February 12, 2000. The respondents argue the ALJ erred in awarding benefits because the claimant was released to modified employment within her restrictions, and because the claimant failed to prove that the wage loss commencing February 12 was caused by the industrial injury. We affirm.
The claimant sustained a compensable foot injury in November 1999. By February 2000, the claimant was medically restricted to “nonweight bearing status.” Further, the claimant was receiving pain and sleep medications to treat the symptoms of her condition. The employer accommodated the medical restrictions by allowing the claimant to perform “mostly sitting duties.” (Tr. p. 24).
On February 9, 2000, the claimant called the employer and reported that she was too sick to work because of the effects of the industrial injury, and because she ran out of medication and was not sleeping well. The claimant also did not work from February 12 until February 21, 2000, because, she testified, her work-related symptoms rendered her unable to work. (Tr. pp. 17-18, 26). When the claimant returned to work on February 21, she discovered that she had been terminated for unspecified reasons.
The claimant sought temporary disability benefits commencing February 12 and continuing. The ALJ credited the claimant’s testimony concerning her inability to work, and determined that she met her burden of proving entitlement to temporary disability benefits. (Findings of Fact 8, 13). Further, the ALJ discredited the respondents’ evidence that the claimant was terminated because she violated the employer’s “no call/no show rule.” Consequently, the ALJ determined the claimant was not “responsible” for the termination from employment within the meaning of § 8-42-105(4), C.R.S. 2000.
On review, the respondents contend the claimant’s right to receive temporary disability benefits was terminated by her return to “modified employment” within her restrictions, and Finding of Fact 14 is unsupported by the evidence insofar as it found that none of the “events” specified in § 8-42-105(3), C.R.S. 2000, has occurred. The respondents also contend, relying on Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), that the ALJ erred in relying on the claimant’s “self-assessment” of her inability to work commencing February 12. Rather, the respondents argue, the ALJ was bound by the treating physician’s restrictions and consequent release to modified employment. We disagree with these arguments.
A claimant is entitled to temporary total disability benefits if she proves the injury caused a disability, that the disability caused the claimant to leave work, and the claimant misses more than three regular working days. If the claimant proves these threshold criteria, temporary total disability benefits continue until the occurrence of one of the four terminating events specified in § 8-42-105(3). PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo.App. 1995). One such event is the claimant’s returned to “modified employment.” Section 8-42-105(3)(b), C.R.S. 2000.
However, we have held that termination of temporary disability benefits under § 8-42-105(3)(c), C.R.S. 2000 (attending physician gives written release to return to regular employment), does not effect a permanent bar to additional temporary disability benefits if the claimant proves a subsequent worsening of condition causing additional disability (restrictions impairing the claimant’s ability to perform regular employment) Rivera v. Ames Construction, W.C. No. 4-421-438 (August 25, 2000); cf. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). Further, in Rivera we held the claimant was not required to produce medical evidence that the worsened condition caused additional restrictions, but could rely upon her own testimony as proof of disability. We recognized that Burns v. Robinson Dairy, Inc., supra, held an ALJ is “not free to disregard the opinion of the attending physician concerning the claimant’s disability to perform regular employment unless the attending physician’s opinion is subject to conflicting inferences, or there is a conflict among multiple attending physicians.” But, Rivera analogized proof of a worsened condition to an initial claim for temporary total disability benefits, and relied on Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997), for the proposition a claimant need not introduce medical evidence to prove that a worsened condition has caused additional disability. See also Chapman v. Dow Chemical Co.,
W.C. No. 4-102-842 (February 25, 1999); Nees v. Re-Tire, Inc.,
W.C. No. 4-355-493 (February 11, 1999).
Here, we agree with the claimant that the ALJ credited the claimant’s testimony that her condition worsened by February 12, 2000, and the worsening rendered her unable to perform the modified employment provided by the employer. Because this determination is supported by substantial evidence, we may not interfere with it. Section 8-43-301(8), C.R.S. 2000. Further, the ALJ did not err in relying on the claimant’s “self-assessment” of her condition, nor was the claimant required to produce medical evidence establishing additional restrictions. Rather, the question of whether the claimant’s testimony, standing alone, was sufficient to establish disability was a question of fact for determination by the ALJ. Lymburn v. Symbios Logic, supra. Burns v. Robinson Dairy, Inc., supra, is not authority to the contrary since that case involved an initial termination of benefits, and was not tried on the question of whether there was a worsened condition subsequent to the release to regular employment.
Neither do we agree with the respondents’ assertion that Finding of Fact 14 is unsupported by the evidence because the claimant had returned to modified employment after the injury. Reading the ALJ’s order in its entirety, we understand Finding of Fact 14 as applying to the absence of any event which would justify the termination of temporary disability benefits after
February 12, 2000. We draw this conclusion because Finding of Fact 14 immediately follows Finding of Fact 13, where the ALJ found the claimant met her burden of proving temporary disability benefits “from February 12, 2000, continuing.” Moreover, Finding of Fact 14 follows the ALJ’s factual determination, in Finding of Fact 12, that the claimant did not violate the employer’s policy and is not “responsible for her job termination.” See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ not held to standard of absolute clarity in expressing findings of fact so long as the basis of the order is clear).
Relying on Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), the respondents next contend the ALJ failed to determine whether the claimant’s “post-separation wage loss” was “to some degree” caused by the industrial injury. Rather, the respondents argue, the wage loss should be attributed to the claimant’s “self-assessment” of her inability to work. We reject this argument.
Generally, the industrial injury need not be the sole cause of the claimant’s temporary wage loss as long as the injury is “to some degree” the cause of the wage loss. Horton v. Industrial Claim Appeals Office, 914 P.2d 1209 (Colo.App. 1996). The only exception to this rule is § 8-42-105(4), which provides that in cases where a temporarily disabled employee is “responsible for termination of employment,” the resulting wage loss “shall not be attributable to the on-the-job injury.” However, if a temporarily disabled claimant loses modified employment for economic reasons, or for other reasons which are not the claimant’s responsibility, the causal relationship between the industrial injury and the wage loss necessarily continues. This is true because the employee’s restrictions presumably impair his opportunity to obtain employment at pre-injury wage levels. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993); J.D. Lunsford v. Sawatsky, 780 P.2d 76
(Colo.App. 1989); Hendricks v. Keebler Co., W.C. No. 4-373-392
(June 11, 1999).
Thus, the record in this case fully supports the ALJ’s award of benefits. The ALJ determined that when the temporarily disabled claimant was able to return to the modified employment on February 21, the employer had terminated the claimant for reasons which were not her responsibility. Therefore, the causal relationship between the claimant’s industrial injury and the wage loss after February 21 continued. Under such circumstances, the claimant was under no affirmative duty to seek other employment in order to maintain her right to benefits. Schlage Lock v. Lahr, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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. 2000. 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 December 18, 2000 to the following parties:
Patricia A. Kiernan, 11634 Steele St., Thornton, CO 80233
Roadway Package System, Inc., 8951 Yosemite St., Henderson, CO 80640
Jeannette O’Dell, Crawford Co., P. O. Box 6502, Englewood, CO 80155-6502
Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy