W.C. No. 4-513-118Industrial Claim Appeals Office.
January 21, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) insofar as it denied a claim for temporary partial disability (TPD) benefits commencing June 10, 2002. The claimant argues that, even though he was responsible for his termination from employment, he is entitled to TPD because his projected earnings in the modified employment would have been less than the average weekly wage (AWW) at the time of the injury. We set the order aside and remand for entry of a new order.
The claimant sustained serious injuries in a compensable accident which occurred on August 14, 2001. The admitted AWW at the time of the injury was $937.56. By letter of April 25, 2002, the employer offered the claimant modified employment, consisting primarily of office work and engine diagnostic work. The offer specified a pay rate of $9 per hour for 20 hours per week, but increasing to 40 hours per week by June 17, 2002, subject to medical approval. On May 23, 2002, the claimant declined the offer and the respondents commenced payment of temporary partial disability benefits based on the claimant’s projected earnings had he accepted the offered employment.
On May 24, 2002, the respondents’ counsel wrote a letter to the claimant’s counsel advising that the employer intended to keep the offer of modified employment open until June 10, 2002. However, the letter warned that if the claimant failed to accept the offer the employer would consider the claimant to have voluntarily quit and his entitlement to temporary disability benefits would end under § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). The letter also expressed the employer’s “hope” that the claimant would return to his pre-injury wage in a relatively short time after returning to work.
The claimant failed to return to work. Hence, the respondents filed a motion to terminate the claimant’s TPD benefits citing the termination statutes as authority. At the hearing the employer’s witness testified that the claimant was a skilled at engine diagnostics and the witness believed that if the claimant had returned to work, the employer would soon have increased his hourly wage. However, the witness also testified such an increase would have been contingent on the claimant’s physical ability to perform certain tasks, particularly engine diagnosis. (Tr Pp. 15, 19, 25).
The ALJ denied the claim for TPD benefits commencing June 10. The ALJ, citing the termination statutes, stated the claimant’s refusal to accept the modified employment amounted to a voluntary termination and the claimant was not entitled to the TPD benefits.
On review, the claimant contends he is entitled to TPD benefits because some of the wage loss after the separation from employment was not caused by his action in causing the termination, but remained attributable to the injury. The respondents argue this determination is an issue of fact and the ALJ implicitly ruled the wage loss resulted from the claimant’s termination. Because the ALJ may have applied an incorrect standard of law, and because the findings are not sufficient to support appellate review, we remand for entry of a new order.
The termination statutes provide that in cases where the claimant is “responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” (Emphasis added). In a series of cases, we have held the plain and ordinary meaning of the term “resulting” is the “consequence or outcome of an action.” Eg. Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726 (May 13, 2002) (wage loss was not the result of voluntary termination where claimant’s condition subsequently worsened and he became totally unable to work). Hence, wage loss results from a termination if it is the consequence or outcome of the claimant’s action in being “responsible” for the termination.
Consistent with this interpretation, we have previously held that if a claimant is responsible for termination of employment, but the terminated employment was modified employment at a reduced wage, the “resulting wage loss” is measured by the AWW at the time of the termination. Thus, to the extent the claimant’s AWW at the time of the termination is less than the AWW at the time of the injury, the difference remains attributable to the disability caused by the injury and does not “result” from the claimant’s action in causing the termination. Consequently, in such circumstances, the claimant is entitled to TPD under § 8-42-106, C.R.S. 2002. Patchek v. Colorado Department of Safety,
W.C. No. 4-432-301 (September 27, 2001).
The respondents contend that in this case the ALJ implicitly credited the employer’s evidence and found that because the claimant was expected to earn more money after returning to work, all post-separation wage loss “resulted” from the injury. However, the ALJ’s order appears to be based on the legal conclusion that if the claimant is responsible for a termination within the meaning of the termination statutes, all
subsequent wage loss is presumed to flow from the termination. As we have held, such an interpretation is contrary to the plain meaning of the phrase “resulting wage loss.” Thus, we disagree with the respondents that the ALJ’s order is based on a finding of fact rather than a conclusion of law.
We do agree with the respondents that in some cases, the question of whether a particular wage loss is the consequence of the claimant’s action in causing a termination may be a question of fact. In this case, there is conflicting evidence concerning how much the claimant could be expected to earn, and for how long, if he had not caused the termination of his employment. Indeed, as pointed out above, the testimony of the employer’s own witness is subject to conflicting inferences on these issues.
Here, the ALJ did not resolve the conflicts in the evidence concerning the extent of the wage loss which “resulted” from the claimant’s termination. Consequently, the matter must be remanded for this purpose, and to enter a new order concerning whether, and to what extent, the claimant may be entitled to TPD benefits commencing June 10. We should not be understood as expressing any opinions on the factual issues because these matters are reserved for the ALJ as fact-finder.
The claimant’s remaining arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2002, is set aside, and the matter is remanded for entry of a new order based on the existing record. Further hearings are not authorized by this order.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Dona Halsey
Copies of this decision were mailed _______January 21, 2003 to the following parties:
Miles E. Minter, 8017 W. Dorian St., Boise, ID 83709
Marybeth Snyder, Diesel Services of Northern Colorado, 1828 E. Mulberry St., Unit D, Ft. Collins, CO 80524
Casualty Reciprocal Exchange, c/o Gail Barbier, Morlan Co., 3333 N. Federal Blvd., Denver, CO 80211
John Demos, Dodson Group, P.O. Box 219497, Kansas City, MO 64121-9497
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Brett R. Parnes, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
By: __________A. Hurtado__________