W.C. No. 4-426-460Industrial Claim Appeals Office.
September 1, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) insofar as the ALJ denied temporary disability benefits commencing July 7, 1999. We affirm.
The ALJ found the claimant suffered a compensable right shoulder injury on January 7, 1999, while employed as lead man on a bridge construction crew for the respondent-employer. The claimant sought emergency treatment and was diagnosed with a right shoulder strain. The claimant did not seek any further treatment until July 6, 1999, when his employment was terminated. At that time, Dr. Shoemaker diagnosed a rotator cuff tear and restricted the claimant’s right shoulder activities. The claimant has not worked since July 6, 1999, and he sought temporary disability benefits.
The ALJ found that the industrial injury did not affect the claimant’s ability to earn wages for six months, and that his employment was terminated for “causes other than” the injury. She further found the claimant has not attempted to find work within his restrictions since July 6, and concluded that claimant’s wage loss was caused by the termination of his employment and his failure to seek employment. Noting that under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the claimant was required to prove that the industrial injury had contributed to some degree to his wage loss, the ALJ concluded that the claimant is not entitled to temporary disability benefits.
On appeal, the claimant contends the ALJ misapplied PDM Molding, Inc. v. Stanberg, supra. The claimant does not dispute the ALJ’s finding that his employment was terminated for causes other than the industrial injury. However, the claimant contends that he was not “at fault” for the termination because he was laid off for lack of work. The claimant also contends that his subsequent wage loss was “to some degree” the result of the industrial injury In support, the claimant argues that the respondent-employer refused to provide modified employment and the ALJ failed to recognize the impact of the medical restrictions imposed after the employment termination. We perceive no reversible error. Section 8-43-310, C.R.S. 1999.
The claimant carries the burden of proving entitlement to temporary total disability benefits. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Temporary disability benefits are payable if the claimant proves a causal connection between the industrial injury and the temporary loss of wages. To establish an entitlement, the claimant must first prove that the industrial injury caused a “disability.” Section 8-42-103(1)(a), C.R.S. 199 ; PDM Molding, Inc. v. Stanberg, supra.
“Disability” involves two elements. First is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by a claimant’s inability “to resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). Further, the earning capacity element of “disability” may be evidenced by the 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); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
In PDM the court held that a termination of employment may constitute an intervening event which severs the causal connection between the industrial disability and the claimant’s wage loss. In determining whether the causal connection is severed the ALJ must first determine whether the claimant was “at fault” for the circumstances resulting in the termination. See Padilla v. Equipment Corp., 902 P.2d 414 (Colo.App. 1994). If the claimant was at fault, the claimant is precluded from receiving further temporary disability benefits unless he reestablishes the requisite causal connection by proof that the injury contributed “to some degree” to the wage loss.
We have previously held that the PDM “fault” analysis is not applicable unless the claimant has sustained his threshold burden to prove a causal connection between the industrial injury and the loss of wages. See Pate v. Western Stone and Metal Corp., W.C. No. 4-252-770 (September 27, 1996). In other words, whether the claimant was at fault for the termination of employment is not significant if the claimant failed to establish he was “disabled” by the injury.
Here, it is implicit in the findings that the ALJ was not persuaded the claimant was disabled. She found the claimant had continued to work full-time and full-duty for six months following the injury and did not request accommodations. (Finding of Fact 11). Although restrictions were imposed subsequent to the termination of his employment, it is apparent the ALJ was not persuaded those restrictions impaired the claimant’s ability to obtain and perform his prior work. The ALJ’s findings of fact reflect a plausible interpretation of the record and therefore, the findings are binding on review. Section 8-43-301(8), C.R.S. 1999; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Moreover, the ALJ’s factual determinations support her conclusion the claimant failed to prove his entitlement to temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 9, 2000, 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. 1999. 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 September 1, 2000 to the following parties:
Edward E. McWilliams, P. O. Box 2, Coal Creek, CO 81221
Probe Construction Company, P. O. Box 66, Florence, CO 81226-0066
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
James M. Anderson, Esq., 559 E. Pikes Peak Ave., #212, Colorado Springs, CO 80903 (For Claimant)
David W. Krivit, Esq., and Mark C. Willis, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy