W.C. No. 4-190-059Industrial Claim Appeals Office.
August 11, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which awarded the claimant temporary total disability benefits. We affirm.
The issue in this case is whether the claimant was entitled to temporary total disability benefits from September 27, 1993 through December 13, 1993. The respondents took the position that the claimant was not entitled to the temporary total disability benefits because she was “at fault” for her post-injury separation from the Denver Dumb Friends League (DDFL). However, the ALJ rejected the respondents’ argument for several reasons. First, the ALJ found that the claimant was not “at fault” for her separation from employment. In this regard, the ALJ determined that the claimant’s failure to appear at work on September 8 and 9, 1993 was not the result of “volitional action.”
Alternatively, the ALJ determined that the “fault” principle, set forth by the Court of Appeals in Monfort of Colorado v. Husson, 725 P.2d 67
(Colo.App. 1986), does not apply to cases where the injury occurred after the July 1, 1991 effective date of Senate Bill 91-218 (SB-218). Finally, the ALJ determined that, even if the Monfort principle does apply, the claimant’s inability to work after September 27, 1993 was the result of the restrictions caused by the injury.
On review, the respondents contend that the ALJ erred in determining that the fault principle established by Monfort of Colorado v. Husson does not apply to post-SB-218 injuries. Further, the respondents assert that the evidence in this case establishes that the claimant was “at fault” for her separation. We find no reversible error.
We assume, arguendo, that the fault principle applies to this post-SB-218 case. However, in PDM Molding Co., Inc. v. Standberg, 898 P.2d 542 (Sup.Ct. 1995), our Supreme Court held that terminations based on fault do not automatically sever a claimant’s entitlement to subsequent temporary disability benefits. To the contrary, the court held that, if the claimant establishes that the industrial injury “contributed to some degree” to the post-separation wage loss, the claimant is entitled to temporary total disability benefits.
Here, the ALJ found, on substantial evidence, that the claimant’s post separation wage loss was, to some degree, attributable to the industrial injury. This finding is supported by the evidence of continuing medical restrictions, and the claimant’s inability to perform her pre-injury employment for DDFL. Under these circumstances, it is immaterial whether or not the claimant was “at fault” for her separation, and we do not consider that question.
IT IS THEREFORE ORDERED that the ALJ’s order, dated May 27, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed August 11, 1995 to the following parties:
Kathy Lea Pentico, 388 W. 88th Ave., Bldg. 3, Apt. 337, Thornton, CO 80229
Denver Dumb Friends League, 2080 S. Quebec, Denver, CO 80231
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency mail)
Joseph W. Ruppert, Esq. and Glen B. Goldman, Esq., 950 S. Cherry St., Ste. 1400, Denver, CO 80222
(For the Claimant)
By: __________________________