W.C. No. 4-355-135Industrial Claim Appeals Office.
November 27, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which was entered on remand. We set aside the order and remand for the entry of a new order.
On June 20, 1997, the claimant suffered an admitted injury while working as a cook for the employer. On January 6, 1998, the employer terminated the claimant’s employment for possessing alcohol while on duty. The claimant subsequently requested temporary total disability benefits.
In a previous order dated April 20, 2000, the ALJ applied the legal standard established in PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995) and found the claimant’s employment was terminated for “cause.” The ALJ also found the claimant failed to sustain her burden to prove a causal connection between the injury and the wage loss after January 6. Therefore, the ALJ denied and dismissed the claim for temporary disability benefits. The claimant timely appealed.
On review of the April order, we concluded the ALJ’s findings of fact were insufficient to permit appellate review. Therefore, we set aside the April order and remanded the matter for additional findings. Specifically, we directed the ALJ to enter additional findings of fact concerning whether the claimant was “at fault” for the loss of employment on January 6, 1998, and whether the claimant proved a causal connection between the injury and wage loss after the employment termination.
On remand the ALJ determined the claimant did not precipitate the termination by a volitional act which the claimant would reasonably have expected to result in the loss of employment. Consequently, the ALJ determined the claimant was not “at fault” for the loss of the employment and awarded temporary disability benefits commencing January 6, 1998. The respondents appealed the May order.
On appeal, the respondents contend, inter alia, that irrespective of “fault” the claimant failed to prove she was a “disabled” employee at the time of the termination. Therefore, they contend the claimant failed to prove grounds for an award of temporary disability benefits. We conclude the ALJ’s findings are insufficient to permit appellate review of this argument and, therefore, we remand for additional findings.
As stated in our Order of Remand, temporary total disability benefits are due where the industrial injury causes a “disability” lasting more than three work shifts, and the claimant leaves work as a result of the disability. Section 8-42-103, C.R.S. 2001; Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). In the context of temporary disability benefits, the term “disability” refers to the claimant’s inability full to perform the duties required in the claimant’s pre-injury employment See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995).
The claimant bears the initial burden to prove the industrial injury caused a “disability.” Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). However, the claimant is not required to present medical evidence to prove the injury rendered her physically unable to perform her regular employment. Rather, the claimant’s testimony, if credited, may be sufficient to prove a “disability.” Lymburn v. Symbios Logic, supra.
The record contains some evidence the industrial injury physically precluded the claimant from performing the duties required of her regular employment. (See Tr. p. 13). However, the weight and sufficiency of the evidence is a matter within the sole province of the ALJ. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
In our prior order, we understood the ALJ’s application of PDM Molding, Inc. v. Stanberg, supra, implicitly to reflect her determination that the claimant was temporarily disabled as of January 6, 1998. This is true because PDM only applies to a claim for temporary disability benefits following the loss of modified employment. In contrast, a claimant who is capable of performing the duties of her regular employment does not meet the definition of a “disabled” employee and, consequently, is not entitled to temporary disability benefits in connection with the loss of employment regardless of the reason the employment is terminated. Furthermore, we were not previously requested to consider whether he ALJ’s findings were sufficient to establish disability because the respondents had prevailed up to that point in time.
However, our order of remand explicitly directed the ALJ to enter specific findings of fact which articulated the evidentiary basis for her determination that there was no causal connection between the industrial injury and the wage loss after January 6, 1998. The May order contains no specific findings of fact to support the ALJ’s implicit determination that the claimant was “disabled” as of January 6, 1998. Consequently, we are unable to ascertain whether the ALJ recognized that, prior to the application of the PDM analysis, the claimant had the threshold burden to prove a “disability.” Under these circumstances, the ALJ’s findings are insufficient to determine whether the ALJ corrected granted the claim for temporary disability benefits and the matter must be remanded for additional findings concerning whether the claimant was temporarily disabled from performing her regular employment on January 6, 1998, or at any time during the period for which temporary disability benefits were sought. Based upon those findings the ALJ shall enter a new order concerning the respondents’ liability for temporary total disability benefits.
In view of our remand, it is premature to consider the respondents’ remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 31, 2001, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed November 27, 2001 to the following parties:
Raylene Lerum, 1928 E. Monument St., Colorado Springs, CO 80909
Chi Chi’s Inc., Pam Moon, Gallagher Bassett Services Inc., P. O. Box 4068, Englewood, CO 80155-4068
National Union Fire Insurance, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
William C. Jolliffe, Esq., 105 E. Moreno Ave., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy