W.C. No. 4-432-301Industrial Claim Appeals Office.
September 27, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied temporary disability benefits after January 11, 2000. We affirm the order in part, reverse part of the order, set aside part of the order, and remand for the entry of a new order.
On July 15, 1999, the claimant injured his left thumb while training as a Trooper Cadet at the State Patrol Academy (Academy). As a result of the injury, the claimant was unable to continue at the Academy training. From January 15 through February 14, 2000, the claimant worked for the Colorado Department of Revenue (CDR) at a reduced wage. From February 15 to February 29, 2000, the claimant worked for Sterling Brothers Construction Inc., (Sterling) as an office manager. On April 17, 2000, the claimant began working for Elam Construction.
On January 12, 2000, Dr. Wright opined that the left thumb injury was well healed and that the claimant’s complaints of left wrist pain were unrelated to the industrial injury. Dr. Wright also placed the claimant at maximum medical improvement (MMI). However, Dr. Wright restricted the claimant from performing push ups, pull ups, or activities involving arrest control of a suspect. The respondents admitted liability for temporary disability benefits from August 18, 1999 through January 11, 2000. The claimant timely objected and requested temporary disability benefits to April 17.
The ALJ credited the opinions of Dr. Conyers over the contrary opinions of Dr. Wright, to find the claimant did not reach MMI on January 12, 2000. The ALJ also credited Dr. Conyers opinion of the claimant’s medical restrictions but determined the medical restrictions did not preclude the claimant from obtaining work after January 11, 2000. Further, the ALJ found no relationship between the claimant’s left wrist complaints and the industrial injury. Consequently, the ALJ determined the claimant failed to prove his wage loss after January 11, 2000 was “to some degree” the result of the industrial injury.
I.
On review, the claimant contends that in denying the claim for temporary disability benefits, the ALJ misapplied the law and in particular, misapplied the principles established in PDM Molding Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We agree the ALJ misapplied the law.
Temporary total disability benefits are due where the claimant proves the industrial injury causes a disability and the claimant leaves work as a result of the disability. Section 8-42-105(1), C.R.S. 2001. For purposes of temporary disability benefits, a “disability” exists when the claimant is unable to fully perform the duties of her pre-injury employment. PDM Molding, Inc. v. Stanberg, supra; see also McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Once the claimant sustains his initial burden of proof, temporary disability benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2001. Under § 8-42-105(3)(a)-(d), temporary total disability benefits terminate when the claimant reaches MMI, returns to regular or modified employment, is medically released to regular employment, or refuses a written offer of modified employment.
In PDM Molding, Inc. v. Stanberg, supra, the Supreme Court interpreted a prior version of the statute. The court held that a disabled worker who is at fault for the loss of modified employment may receive temporary disability in connection with the subsequent wage loss if the injury remains “to some degree” the cause of the post-termination wage loss. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Black Roofing Inc., v. West, 967 P.2d 195
(Colo.App. 1998).
However, § 8-42-105(4), C.R.S. 2001, which is the current version of the statute, applies to this claim. That statute provides that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” Applying the rules of statutory construction, we previously concluded that § 8-42-105(4), [and identical language in § 8-42-103(1)(g), C.R.S. 2001], is ambiguous. See McGaffey v. Assured Transportation Delivery, Inc.,
W.C. No. 4-434-706 (April 27, 2001); Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). We concluded that § 8-42-103(1)(g) and § 8-42-105(4) are intended to apply where the claimant is terminated from post-injury modified employment. We reasoned that the legislative history indicates the General Assembly enacted §8-42-105(4) and § 8-42-13(1)(g) to overturn PDM Molding, Inc. v. Stanberg, supra, and preclude an injured worker from recovering temporary disability benefits where the worker is at fault for the loss of post-injury modified employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss. See House Business, Affairs Labor Committee, January 14, 1999, at 2:00 p.m. Senate Committee on State, Veterans Military Affairs, February 2, 1999, 1:39 p.m. Therefore, the legislature adopted language which precludes the ALJ from finding that a claimant’s post-separation wage loss is “to some degree” the result of the industrial injury where the claimant is “responsible” for the termination of employment. We adhere to our conclusions in Martinez and McGaffey.
Here, it is undisputed that the claimant was temporarily totally disabled from August 18, 1999 through January 11, 2000, as a result of the industrial injury. Thus, the issue was whether the respondents established grounds for the termination of benefits effective January 12, 2000.
The ALJ explicitly found the claimant is not at MMI and there was no written offer of modified employment from the Academy. (Conclusions of Law p. 5). Further, there is no finding or assertion that the claimant returned to modified or regular employment between January 11 and January 15, 2000. Consequently, § 8-42-105(4) does not apply to the claim for temporary disability benefits prior to January 15 and temporary total disability benefits could only be terminated in accordance with §8-42-105(3)(c).
Section 8-42-105(3)(c) provides for termination if the attending physician gives the employee a written release to return to regular employment Here, the ALJ credited Dr. Conyers’ opinions concerning the claimant’s medical restrictions. Dr. Conyers’ stated that he didn’t know what restrictions were appropriate for the claimant in January 2000 because he hadn’t seen the claimant since September 1999. (Conyers depo. p. 19). However, he agreed with Dr. Wright that the claimant should refrain from engaging in arrest procedures and added that he would impose restrictions on the use of the injured hand. (Conyers depo. p. 19).
As we read the ALJ’s order he credited Dr. Conyers’ opinion to find the claimant was medically restricted from performing his regular employment after January 11, 2000, because he was precluded from performing arrest procedures. Furthermore, this finding compels the conclusion temporary total disability benefits did not terminate on January 11, 2000 by operation of § 8-42-105(3)(c).
Moreover, Dr. Conyer’s testimony is legally insufficient to support the termination of benefits under § 8-42-105(3)(c) because there is no evidence Dr. Conyers gave the claimant a written release to regular employment. See Owens v. Ready Men Labor, Inc., W.C. No. 4-178-276, August 25, 1995, aff’d Ready Men Labor, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 95CA1590, April 25, 1996) (not selected for publication). To the contrary, Dr. Conyer’s opinions concerning the claimant’s medical restrictions were stated during his deposition testimony on August 10, 2000. Consequently, the ALJ erred in denying temporary total disability benefits for the period January 12 through January 14, 2000.
Next, it is undisputed the claimant began full-time employment with the CDR on January 15, 2000. Because the claimant was medically restricted from performing his regular employment and he obtained employment within his medical restrictions, he necessarily returned to “modified” employment. This event terminated his entitlement to temporar total disability benefits. However, because the claimant earned a reduced wage from the modified employment at CDR, he remained entitled to temporary partial disability benefits calculated in accordance with § 8-42-106(1), C.R.S. 2001 [temporary partial disability benefits shall equal sixty-six and two-thirds percent of the difference between the claimant’s average weekly wage at the time of the injury and the average weekly wage during the disability (Emphasis added)]. Therefore, the ALJ erroneously failed to award temporary partial disability benefits for the period January 15 through February 14, 2000.
However, the claimant’s entitlement to both temporary partial and temporary total disability benefits terminated February 15, 2000, when the claimant obtained modified employment with Sterling, because the claimant’s average weekly wage at Sterling exceeded his pre-injury wage. Thus, the claimant had no wage loss. Therefore, we affirm the ALJ’s order denying temporary disability benefits for the period February 15 through February 29, 2000.
Because the claimant’s entitlement to both temporary total and temporary partial disability benefits terminated when he accepted employment at Sterling, his entitlement to temporary disability benefits after February 29, 2000, is dependent on whether he was “responsible” for the termination of his employments at CDR and Sterling within the
meaning of § 8-42-105(4). This is true because even if the claimant was not responsible for the termination of his employment at Sterling, he previously had modified employment at the CDR which precluded his entitlement to temporary total disability benefits.
We have previously held that a claimant is “responsible” if the claimant precipitated the employment termination by a volitional act which an employee would reasonably expect to result in the loss of employment. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994); Martinez v. Colorado Springs Disposal, supra. We adhere to our previous conclusions.
The ALJ made no findings of fact concerning the application of § 8-42-105(4). Consequently, the ALJ’s findings are insufficient to permit appellate review of whether the ALJ erroneously denied the claim for temporary disability benefits from March 1 to April 17, 2000, and the matter must be remanded to the ALJ for additional findings. Section 8-43-301(8), C.R.S. 2001; Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
On remand, the ALJ must determine whether the claimant was “responsible” for the loss of the modified employment at Sterling. If the ALJ determines the claimant was responsible for this employment termination, the claimant’s resulting wage loss may not be attributed to the industrial injury.
However, if the ALJ finds the claimant was not responsible for the employment termination at Sterling, the ALJ must also determine whether the claimant was responsible for the termination of employment at the CDR. If the ALJ determines the claimant was responsible for the employment termination at CDR, then the claimant is entitled to temporar partial disability benefits between March 1 and April 17 based upon the reduced wage paid at CDR. These circumstances warrant the award of temporary partial disability benefits because even if the claimant is responsible for the loss of modified employment at CDR, he nevertheless suffered a temporary partial wage loss during this employment which was caused by the industrial injury. In this respect, we note that §8-42-105(4) only concerns the “resulting” wage loss attributable to a termination for which the claimant is responsible.
In contrast, if the ALJ determines the claimant was not responsible for the loss of modified employment at either CDR or Sterling, the resulting wage loss is presumed to be attributable to the industrial disability. Consequently, the claimant is entitled to temporary total
disability benefits between March 1 and April 17, when he secured alternate employment where he earned his pre-injury wage.
In view of our disposition, we necessarily reject the respondents’ contention that the issue of temporary partial disability benefits was not endorsed for hearing. At the commencement of the hearing the claimant’s attorney argued the claimant was entitled to both temporary total and temporary partial disability benefits. (Tr. pp 17, 21). Further, the respondents’ attorney conceded temporary partial disability benefits were endorsed for adjudication. (Tr. p. 24).
II.
The claimant also contends the ALJ exceeded his authority in determining that the claimant’s wrist pathology was unrelated to the industrial injury. The claimant contends causation of the wrist injury was not endorsed for adjudication. We are not persuaded.
Insofar as the claimant contended that at least part of his temporary disability was due to left wrist pain and weakness, the compensable nature of the wrist problems and its resulting medical restrictions was inherently related to the claim for temporary disability. Therefore, the ALJ did not exceed his jurisdiction in determining there was no causal connection between the injury and the wrist problems.
IT IS THEREFORE ORDERED that the ALJ’s order is reversed insofar as the ALJ denied temporary total disability benefits from January 12 through January 14, 2000 and temporary partial disability benefits from January 15 through February 14, 2000.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as the ALJ denied temporary total disability benefits after February 29, 2000, and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein. In all other respects not specifically mentioned, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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. 2001. 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 27, 2001 to the following parties:
Robert E. Patcheck, 14869 County Road 105, Mancos, CO 81328
Cindy Busby, Colorado Department of Public Safety, 700 Kipling, Lakewood, CO 80215
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Timothy L. Nemechek, Esq., 999 18th St., #3100, Denver, CO 80202
BY: L. Epperson