W.C. Nos. 4-585-059, 4-585-060, 4-585-061, 4-590-372.Industrial Claim Appeals Office.
December 17, 2004.
FINAL ORDER
In these consolidated workers’ compensation cases, the respondents seek review of an order and supplemental order awarding the claimant temporary partial disability (TPD) benefits. The respondents contend the ALJ’s findings compel the conclusion that the claimant’s wage loss was caused by his own fault, not the industrial injuries. We affirm.
The employer was engaged in the business of molding and forming plastic parts. The claimant was employed as a “trainer,” which required him to teach “operators” how to run the employer’s machinery and to operate the machinery during break periods of other employees. In September 2002, the claimant earned $14.94 per hour.
On September 29, 2002, the claimant sustained a compensable occupational disease (epicondylitis) involving the right upper extremity. The claim was assigned W.C. No. 4-585-059. This injury resulted in medical restrictions on the repetitive use of “snippers” and lifting greater than 15 pounds. The claimant was returned to regular duty on January 3, 2003.
Beginning in May 2001, the employer issued the claimant a series of “warnings” concerning substandard performance. On December 29, 2002, the employer issued another warning stating the employer had decided to demote the claimant to an “operator” position and reduce the claimant’s pay after a replacement was trained.
In March 2003, the claimant sustained an aggravation of the prior occupational disease when disposing of trash. The claim for this injury was assigned W.C. No. 4-585-060. No restrictions were imposed and the respondents admitted liability for medical benefits.
On June 6, 2003, the claimant reported an injury involving his left upper extremity. The claim for this injury was assigned W.C. No. 4-585-061. The claimant was diagnosed with left epicondylitis and given restrictions against repetitive lifting over 5 pounds, pushing or pulling with greater than 5 pounds of force, repetitive forceful gripping. Although on August 11, 2003, one physician recommended a “full duty work trial,” a second physician reinstated restrictions on September 8, 2003.
In July 2003, the employer assigned the claimant to do “light duty” work as a janitor. (Respondents’ Exhibit O). On September 10, 2003, the claimant injured his back while mopping. The claim for this injury was assigned W.C. No. 4-590-372. As a result of the back injury, the claimant was restricted from lifting more than 10 pounds or pushing and pulling with more than 10 pounds of force.
On June 9, 2003, the claimant’s supervisor completed a “Personnel Action Notice” which had the effect of demoting the claimant to “operator” and reducing the claimant’s pay to $9 per hour. This action was given an “effective date” of June 2, 2003. (Findings of Fact 9
11, Respondents’ Exhibit L).
On June 4, 2004, the ALJ entered an order concerning the claimant’s entitlement to TPD benefits. The ALJ found that when the claimant’s pay was reduced effective June 2, 2003, the reduction was attributable to the claimant’s “sub-standard performance, and not his work-related injuries and restrictions.” (Finding of Fact 9). However, the ALJ also found that on June 10, 2003, the claimant was restricted because of the June 6 injury and the restrictions affected his ability to perform his duties for the employer, as well as his employability in the general labor market. Therefore, the ALJ concluded the claimant’s “compensable injuries contributed to some degree to [the claimant’s] wage loss” and the claimant is entitled to TPD benefits. The amount of these benefits was reserved for future determination.
On July 26, 2004, the ALJ issued the supplemental order addressing the amount of TPD benefits. Pursuant to a stipulation of the parties, the ALJ found the total liability for TPD benefits between June 6, 2003 and March 1, 2004 (admitted date of maximum medical improvement), was $10,104.90. Further, the ALJ attributed $3,536.72 of the total to W.C. No. 4-585-061
(June 6 left arm injury) payable from June 6, 2003 through September 9, 2003. The ALJ attributed the remaining $6,568.18 to W.C. No. 4-590-372
(September 10 back injury).
On review, the respondents contend the claimant’s wage loss after June 6, 2003, was not caused by the industrial injuries but instead by the reduction in pay resulting from the claimant’s own performance failures. Under these circumstances, the respondents contend the claimant is not entitled to TPD benefits. We disagree.
Initially, we note the claimant was never separated from the employer, but instead remained employed. Thus, § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (collectively the termination statutes) which govern “termination” from employment, do not apply here.
Section 8-42-103(1), C.R.S. 2004, provides that an injury must “cause” disability. Section 8-42-106(1), C.R.S. 2004, provides that if the wage loss caused by the disability is not total, the claimant shall receive “sixty-six and two-thirds percent of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability.”
Because the termination statutes do not apply, we conclude the ALJ correctly held that the law set forth in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo.App. 1995), governs the determination of whether the claimant is entitled to TPD benefits. Indeed, we previously applied th PDM principles to a claim for TPD benefits in the context of a demotion and reduction in pay. See Folsom v. City and County of Denver, W.C. No. 4-289-567 (April 29, 1997) (PDM analysis applies where claimant loses a particular job assignment and experiences a consequent wage reduction).
Under PDM, the ALJ must make a threshold determination concerning whether the claimant was at fault for the loss of the employment or the reduction in pay. If the claimant was at fault, the claimant is disqualified from the receipt of temporary benefits unless the claimant establishes that to “some degree” the wage loss remains attributable to the effects of the industrial injury. PDM Molding, Inc. v. Stanberg, 898 P.2d at 548-549; Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Determination of these issues involves questions of fact for resolution by the ALJ. See Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997).
Because these issues are factual, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 117 (Colo.App. 2003). Moreover, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law, and we may consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ apparently found the claimant was “at fault” for the demotion because he failed to meet performance expectations. However, we also understand the ALJ to have found that the demotion itself did not occur until the supervisor issued the June 9 “personnel action,” although the employer declared the demotion to be “effective” on June 2. Because the demotion occurred after the June 6 injury, the ALJ was required to determine whether “to some degree” the claimant’s subsequent wage loss was caused by the June 6 and September 9 injuries.
There is substantial, albeit conflicting, evidence to support the ALJ’s finding that the wage loss after June 6 was to some degree caused by the injuries. The claimant testified that the restrictions imposed after June 6 interfered with his ability to perform some functions of his job, including the opening and closing of heavy machine doors. (Tr. April 28, 2004, pp. 19-21; 76-77). Indeed, the employer placed the claimant in the “light duty” job of janitor in July 2003. The ALJ logically inferred from this evidence that because the claimant could not physically perform all of the functions of the job he held on June 6, his access to similar jobs in the labor market was restricted and he had temporarily lost the opportunity to find alternative employment which would pay him the pre-injury wage. Thus, the record supports the ALJ’s finding that the wage loss after June 6 was not solely the result of the claimant’s conduct which led to the demotion. Cf. Black Roofing, Inc. v. West, 967 P.2d 195
(Colo.App. 1998).
IT IS THEREFORE ORDERED that the ALJ’s orders dated June 4, 2004, and July 26, 2004, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Dona Halsey
Trang Nguyen, Broomfield, CO, Intertech Plastics, Inc., Denver, CO, American Home Assurance Co., Regulatory Information Services, New York, NY, Laurie Iverson, Specialty Risk Services, Park City, UT, Elsa Martinez Tenreiro, Esq., Denver, CO, (For Claimant).
Bernard Woessner, Esq., Denver, CO, (For Respondent).