W.C. No. 4-288-848Industrial Claim Appeals Office.
November 7, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as the ALJ awarded temporary total disability benefits. We affirm.
The pertinent facts are undisputed. On January 18, 1996, the claimant suffered a compensable injury to his right Achilles tendon. On January 21, 1996, the treating physician released the claimant to return to work which did not require heavy lifting or pushing. The physician also directed the claimant to “reduce” the amount of walking he did on the job.
The claimant returned to work until February 5, 1996, when the treating physician removed him from work for 2-3 days. Thereafter, the claimant again returned to work until March 6, 1996, when he voluntarily resigned. On April 30, 1996, the treating physician diagnosed the claimant with a partial rupture of his Achilles tendon and left leg strain, and restricted him from working until May 7, 1996. The claimant was subsequently unemployed until November 14, 1996.
The respondent admitted liability for temporary disability benefits between April 30, 1996 and May 7, 1996. However, the respondent denied liability for any further temporary disability benefits after March 6, 1996, on grounds that the claimant was not restricted from performing his regular duty and the claimant was at fault for the employment separation.
The ALJ found that the claimant was not at fault for the employment termination. The ALJ also determined that the claimant was medically restricted from performing his regular work at the time of the employment termination. Therefore, the ALJ ordered the respondent to pay temporary disability benefits from March 6, 1996 through November 14, 1996.
On review the respondent renews the arguments it made before the ALJ. Accordingly, the respondent contends that the ALJ erred in awarding additional temporary disability benefits. We disagree.
The claimant bears the burden to prove an entitlement to temporary disability benefits. The claimant sustains his burden by establishing that the industrial injury caused a “disability,” that he left work as a result of the disability, and that he sustained an actual loss of wages. Section 8-42-103(1), C.R.S. 1997; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546
(Colo. 1995). For purposes of temporary disability benefits, a “disability” exists when the claimant is unable to perform his pre-injury employment duties. PDM Molding, Inc. v. Stanberg, supra; see also McKinley v. Bronco Billy’s, 903 P.2d 1239
(Colo.App. 1995).
Once the claimant has proven his entitlement to temporary disability benefits, benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1997. Under § 8-42-105(3)(c), temporary disability benefits terminate when the attending physician gives the claimant a release to return to her regular employment. Popke v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1782, August 14, 1997). In this regard, the attending physician’s opinion of the claimant’s ability to perform regular or modified employment is dispositive. Burns v. Robinson Dairy, Inc., supra.
However, the determination of whether the attending physician has issued a release to return to work is a question for fact for resolution by the ALJ. Burns v. Robinson Dairy, Inc., supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; Popke v. Industrial Claim Appeals Office, supra.
Here, the ALJ found the medical records ambiguous. In particular, the ALJ found that none of the medical records after January 21, 1996, expressly released the claimant from the prior medical restrictions. To the contrary, the ALJ noted the April 30, 1996 report expressly states that “any walking, especially while pulling or pushing heavy loads, will aggravate [the claimant’s] condition.” (Tr. pp. 30-31); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Under these circumstances, the ALJ was not persuaded that the claimant was released to return to his regular employment between March 6, 1996 and November 14, 1996. Instead, the ALJ found that the claimant was restricted from performing the walking requirements of his pre-injury job. The ALJ’s findings are a plausible interpretation of the medical record, and therefore, they must be upheld on review.
However, the respondent contends that the claimant voluntarily quit the employment. Accordingly, the respondent argues that the claimant’s subsequent wage loss was due to his own actions and not the injury. The ALJ found to the contrary, and we perceive no basis to interfere with that determination.
Admittedly, where a claimant is at fault for the loss of modified employment, the employment termination constitutes an intervening event which severs the causal connection between the industrial injury and the claimant’s subject wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). However, the determination of whether the claimant was at fault for the employment termination is a factual determination for the ALJ.
Furthermore, a claimant who is physically unable to perform the modified employment is presumed not to be at fault for the termination. This is true because “fault” connotes a volitional action on the part of the claimant. See Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
Crediting the claimant’s testimony, the ALJ found that the employer did not provide modified work which reduced the claimant’s walking. The ALJ also determined that severe pain from the injury precluded the claimant from continuing to work after March 6, 1996. Under these circumstances, the ALJ determined that the claimant was not at fault for the employment termination.
The ALJ’s determination is supported by substantial, albeit conflicting evidence in the record. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Furthermore, we cannot substitute our judgment for that of the ALJ concerning the credibility of the witnesses, and the resolution of conflicts in the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Therefore, we are bound by the ALJ’s determination that the claimant was not “at fault” for the employment termination.
In any case, a termination for fault is not a permanent bar to temporary disability benefits. PDM Molding, Inc. v. Stanberg, supra. To the contrary, a claimant may receive additional temporary disability benefits if the industrial disability “contributes “to some degree” to the claimant’s wage loss after the employment termination. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
In light of the fact that the claimant injured his foot, the ALJ reasonably inferred that the claimant was necessarily limited in his ability to walk and stand during the recovery period. (Tr. p. 31). The ALJ also determined that the claimant’s pain from the industrial injury not only precluded him from performing the walking requirements of his regular job, but also impaired his ability to walk for the purpose of seeking and securing employment.
These findings support that the conclusion that the industrial injury contributed to the claimant’s wage loss between March 6, 1996 and November 14, 1996. Furthermore, the respondent’s remaining arguments have been considered and are unpersuasive. See Lymburn v. Symbios Logic, ___ P.2d ___ (Colo.App. No. 97CA0214, September 18, 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 16, 1997, 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, 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. 1997.
Copies of this decision were mailed November 7, 1997 to the following parties:
Michael Reza, 641 Galapago, #1, Denver, CO 80204
Payless Shoesource, Inc., 5735 Independence St., Arvada, CO 80002-2140
Leola Ellis, Foley’s Department Store, c/o Central Regional Claims Office, P.O. Box 16905, Clayton, MO 63105-0993
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For the Claimant)
Hollyce H. Farrell, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: __________________________