W.C. No. 4-252-770Industrial Claim Appeals Office.
September 27, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which denied her request for temporary total disability benefits subsequent to April 7, 1995. We affirm.
The claimant sustained an occupational disease as a result of her duties as a jeweler for the respondent-employer. The injury was treated by Dr. Smardo who diagnosed a “cervical myofascial strain” and “bilateral thoracic outlet insufficiency.” Dr. Smardo also referred the claimant to a neurologist, Dr. Glatz, and a psychologist, Dr. Chinisci. In a note dated March 24, 1995, Dr. Chinisci reported that the claimant needed to “take a personal leave of absence due to the stress of her job and ongoing physical pain.” However, Dr. Chinisci’s clinic notes indicate his agreement with Dr. Smardo that the time off was required for “personal reasons” and was not a workers’ compensation issue. Consequently, neither Dr. Smardo nor Dr. Glatz released the claimant from work.
Nevertheless, the claimant began a leave of absence on April 7, 1995. Because the leave was unapproved, the respondent-employer terminated the claimant’s employment effective April 17, 1995, on grounds of job abandonment.
At a hearing on her claim for additional temporary disability benefits, the claimant testified that she was physically unable to continue working after April 7, 1995. However, the ALJ found that the medical evidence could not reasonably be interpreted as restricting the claimant from performing her regular employment due to the medical or psychological effects of the industrial injury. Rather, the ALJ determined that the claimant’s request for a leave of absence was for personal reasons. Consequently, the ALJ determined that the claimant failed to sustain her burden of proof for an award of temporary disability benefits after April 7, 1995.
On review the claimant contends that the ALJ misapplied the law in failing to consider PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). However, the claimant concedes that the ALJ’s Summary Order dated February 15, 1996, reflects the ALJ’s consideration of PDM, and the ALJ’s determination that PDM is not applicable to the facts of this claim. We agree with the ALJ that PDM is not applicable to the facts of this claim.
As argued by the claimant, temporary disability benefits are due if the claimant proves a causal connection between the industrial injury and the temporary loss of wages. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); J.D. Lunsford v. Sawatsky, 780 P.2d 76
(Colo.App. 1989). In PDM Molding, Inc. v. Stanberg, supra, the court held that the claimant has established the requisite causal connection upon proof that the industrial injury has caused “disability” lasting more than three days and that the claimant has left work as a result of the disability. Section 8-42-103(1), C.R.S. (1996 Cum. Supp.).
Furthermore, PDM sets forth the procedure for determining whether there is causal connection between the industrial injury and a temporary wage loss where the claimant is terminated from the employment she was performing at the time of the industrial injury. Under those circumstances, PDM holds that there must be an “initial determination” concerning whether the “termination was for fault.” If the claimant was not at fault for the termination a causal connection between the industrial injury and the subsequent wage loss is presumed. However, if the claimant is found to be at fault for the termination, the termination constitutes an intervening event which severs the causal connection between the industrial injury and the subsequent wage loss unless the claimant proves that the industrial injury contributed “to some degree” to the subsequent wage loss.
However, the PDM analysis is not applicable unless the claimant is disabled during the period for which temporary disability benefits are requested. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); Fagan v. Ferguson Electric Corporation,
W.C. No. 4-172-750, January 13, 1995, aff’d. Ferguson v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0167, July 6, 1995) (not selected for publication). Specifically, in PDM, the court found that the claimant was medically restricted from lifting or pulling over fifteen pounds as a result of the industrial injury, and that the claimant’s regular employment duties exceeded these restrictions. Therefore, in PDM the industrial injury was found to have temporarily disabled the claimant from performing his regular employment.
As indicated in PDM the term “disability” refers to the claimant’s physical inability to perform his regular employment duties. See §8-42-103(1), C.R.S. (1996 Cum. Supp.); Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995). Furthermore, the applicable law provides that the attending physician’s opinion concerning the claimant’s physical ability to perform the duties of the regular employment is dispositive. Burns v. Robinson Dairy, Inc., supra. Consequently, the court has held that the claimant’s self-assessment concerning the ability to perform regular employment is insufficient to sustain the claimant’s burden to prove “disability.” Burns v. Robinson Dairy, Inc., supra; Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff’d. Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication).
Moreover, PDM provides that temporary disability benefits subsequent to an employment termination continue only until the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. (1996 Cum. Supp.). Subsection 8-42-105(3)(c) permits the termination of temporary disability benefits when the attending physician gives the claimant a release to return to regular employment.
Because, PDM expressly refers to the application of §8-42-105(3)(a)-(d), we reject the claimant’s contention that PDM allows the claimant to prove “disability” by evidence other than medical restrictions from an attending physician. Furthermore, the claimant’s reliance upon our conclusions in Good v. Greeley Center for Independence, W.C. No. 4-191-613, April 9, 1996 and Ballinger v. City of Colorado Springs, W.C. No. 4-154-631, April 12, 1996, is misplaced. Unlike the facts in this claim, the claimants in Good and Ballinger were medically restricted from performing their regular employment during the period for which temporary disability benefits were sought. Therefore, both cases are factually distinguishable from the circumstances presented here.
Here, the ALJ found that the claimant failed to prove an industrial “disability” during the disputed period. Although, the medical evidence could have been interpreted differently, the ALJ’s findings constitute plausible inferences drawn from the medical reports of Dr. Smardo, Dr. Glatz and Dr. Chinisci, and therefore, must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Moreover, the ALJ’s finding that the claimant was not restricted from performing her regular employment supports the ALJ’s order denying the claim for temporary disability benefits after April 7, 1995. In other words the ALJ’s finding that the claimant failed to prove that the industrial injury caused “disability,” demonstrates that there was no causal connection between the industrial injury and the claimant’s wage loss to be severed by the employment termination. Thus, the PDM analysis is not dispositive of the claimant’s entitlement to further benefits. See Ingledue v. Richland Homes, Inc., W.C. No. 4-210-492, October 17, 1995. Under these circumstances, the ALJ did not err in concluding that PDM is inapplicable to this claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 4, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to Section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed September 27, 1996 to the following parties:
Martha Pate, 3732 Zuni St., Denver, CO 80211
Western Stone Metal Corp. d/b/a The Shane Co., 9200 East Mineral Ave., Suite 200, Englewood, CO 80112
TIG Premier Insurance Co., Attn: Nancy Rostad, P.O. Box 17005, Denver, CO 80217
Greg S. Russi, Esq., 1900 Grant St., Ste. 1030, Denver, CO 80203 (For the Claimant)
Jeanne M. Labuda, Esq., 6400 S. Fiddlers Green Circle, #1270, Englewood, CO 80111 (For the Respondents)
BY: _______________________