W.C. No. 4-270-486Industrial Claim Appeals Office.
April 30, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), which awarded the claimant temporary partial disability benefits from January 29, 1996 to March 21, 1996, and March 22, 1996 to September 16, 1996. We affirm the order in part, set it aside in part, and remand for entry of a new order.
The ALJ found that the claimant sustained a compensable shoulder injury on September 6, 1995. Although not initially recognized by the treating physician, the ALJ also found the claimant sustained a back injury.
In November 1995, the claimant underwent shoulder surgery, and the respondents admitted liability for temporary total disability benefits from November 30, 1995 through January 28, 1996. On January 29, 1996, the claimant returned to limited duty with the respondent-employer. The employer’s witness testified the claimant was restricted to working thirty hours per week, but that this restriction was caused by a non-industrial blood clot. (Tr. p. 107). Conversely, the claimant testified that restrictions from the shoulder injury required him to work the day shift, without benefit of a shift premium, and also precluded him from working a full day. (Tr. p. 56).
The claimant’s treating physician opined the claimant reached maximum medical improvement (MMI) from the shoulder injury on March 20, 1996. However, the physician then imposed “medium” work restrictions as a result of the claimant’s back injury. The physician also prescribed treatment for the back condition.
On March 21, 1996, the employer terminated the claimant for falsifying time cards. The ALJ found that the claimant subsequently searched for employment within his restrictions and found a job with another employer. However, the ALJ determined the claimant’s earnings from the new job were lower than his average weekly wage until September 16, 1996.
Under these circumstances, the ALJ concluded that the claimant is entitled to temporary partial disability benefits from January 29 through March 21, 1996. In so doing, the ALJ stated he was not persuaded by the employer’s evidence that the claimant’s wage loss was entirely attributable to “non-occupational problems” resulting from the blood clot. In support of this determination, the ALJ noted that the respondents failed to present documentary evidence corroborating their theory of the case.
The ALJ also awarded temporary partial disability benefits for the period of March 22 to September 16, 1996. In support, the ALJ determined that the claimant’s wage loss for this period of time was “to some degree” the result of the continuing effects of the industrial injury.
I.
On review, the respondents contend the ALJ erred in awarding temporary partial disability benefits for the period of January 29 through March 21, 1996. The respondents argue there is no evidence that the claimant was medically restricted for his shoulder injury, or his back injury, prior to being placed at MMI on March 20, 1996. Consequently, the respondents assert the claimant’s wage loss during this period of time is entirely attributable to the non-industrial blood clot. We disagree.
Once the claimant establishes his initial entitlement to temporary disability benefits, the claimant remains entitled to benefits so long as the subsequent wage loss is “to some degree” the result of the injury, and none of the circumstances described in § 8-42-105(3), C.R.S. 1997, occurs. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The claimant need not establish that the industrial injury is the “sole” cause of the wage loss, and it is only where an intervening event or injury is the single cause of the wage loss that temporary disability benefits may be denied. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
Here, it is not disputed that the claimant established his initial entitlement to temporary disability benefits. In fact, the respondents admitted liability through January 28, 1996.
Thus, the issue is whether the wage loss after the claimant’s January 29 return to work was “to some degree” the result of the industrial injury. Resolution of this question is one of fact, and we must uphold the ALJ’s determination if supported by substantial evidence in the record. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995); §8-43-301(8), C.R.S. 1997. Moreover, there is no requirement that the claimant present “medical evidence of restrictions” to prove that the effects of the industrial injury were impairing his ability to earn wages. Lymburn v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 97CA0214, September 18, 1997).
Here, the record contains ample evidence to support the ALJ’s finding that the claimant’s partial wage loss was to some degree caused by the industrial injury. The claimant testified that the wage loss was partially caused by the employer’s inability fully to accommodate the restrictions resulting from his shoulder injury. Specifically, the claimant was limited to working in the day, and for fewer hours. It is true the respondents’ witness presented contrary evidence, but the ALJ resolved this conflict in favor of the claimant. We are in no position to substitute our judgment for the ALJ’s concerning the credibility of the witnesses.
The respondents’ argument notwithstanding, the record also contains evidence from which the ALJ could infer that the industrial injury was causing medical restrictions as of January 29. For instance, in a report of March 20, 1996, Dr. Hsin reported the claimant could “advance to regular duty” for the shoulder injury. This language implies that prior to March 20, the claimant could not be “advanced” to regular duty.
Further, as of April 4, 1996, Dr. Hsin indicated the claimant was subject to “medium” work restrictions for his back, and needed further treatment. The ALJ could infer that since the claimant had not received any treatment for his back, those restrictions would have been equally applicable had the back injury been recognized earlier. Consequently, the ALJ need not have inferred that the claimant’s wage loss was solely attributable to the non-industrial wage loss.
II.
The respondents also assert that the ALJ erred in determining the amount of temporary partial disability benefits to be paid for the period of January 29, 1996 through March 21, 1996. The respondents argue that, during the course of the hearing, the parties agreed to withdraw from the ALJ’s consideration the “amount of benefits” payable in attempt to reach an agreement among themselves. We agree with this argument, and therefore, set aside the award of temporary partial disability benefits and remand for further proceedings.
Due process guarantees that where an administrative determination turns on a factual issue the parties be apprised of all evidence to be submitted and considered, and be afforded a reasonable opportunity to confront adverse witnesses and present evidence and arguments in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Thus, where the parties agree to withdraw an issue from consideration, the ALJ should not subsequently resolve the issue without notice to the parties. Hendricks v. Industrial Claim Appeals Office, supra.
As the respondents argue, during the course of the hearing, a dispute arose concerning the reliability of the pay records submitted into evidence. Counsel for claimant indicated that because of this fact she would “agree to calculate temporary partial disability benefits, if appropriate, for this period of time.” Counsel for respondents stated that he believed he had the relevant evidence, and that the matter “could be worked out.” (Tr. p. 57).
Under these circumstances, the parties agreed to withdraw the issue of the amount of temporary partial disability benefits from consideration by the ALJ. Although it does not appear the parties have subsequently resolved this issue among themselves, the fact remains that the ALJ should not have considered the issue in contravention of the parties’ agreement.
It follows that we must set aside that portion of the ALJ’s order concerning the “amount” of temporary partial disability benefits to be awarded from January 29, 1996 through March 21, 1996. The matter is remanded for further proceedings and entry of a new order on this issue. This ruling in no way alters the ALJ’s determination that the claimant is entitled to benefits for the disputed period.
III.
The respondents next contend the ALJ erred in awarding temporary total disability benefits for the period March 22, 1996 to September 16, 1996. The respondents assert that the ALJ misapplied the holding in PDM Molding, Inc. v. Stanberg, supra, because the totality of the evidence establishes that, had the claimant not been discharged for cause, the employer would have continued to employ him. In any event, the respondents assert that, at most, only ten hours per week of impaired earning capacity can be attributed to the industrial injury. We disagree with these arguments.
In cases where a temporarily disabled claimant is discharged from post-injury employment, and the claimant is at fault for loss of the employment, the burden shifts to the claimant to establish that the subsequent wage loss was to “some degree” caused by the industrial injury. PDM Molding, Inc. v. Stanberg, supra. The issue is the extent to which limitations resulting from the industrial injury contribute to the claimant’s inability to secure alternative employment at pre-injury wage levels. PDM Molding, Inc. v. Stanberg, supra. Thus, we stated in Smith v. M.A. Mortenson Company, W.C. No. 4-205-636 (May 31, 1995), that the issue depends “not upon whether the respondent-employer would have continued the claimant’s employment but for the separation, but whether the `totality of the circumstances’ demonstrate that the injury impaired the claimant’s ability to find or hold other
employment.” (Emphasis in original).
Here, the respondents’ assertions notwithstanding, the claimant presented evidence that he conducted a post-separation search for employment, and in fact obtained employment with Ascent Entertainment. Further, the claimant indicated that he earned less than he did at the time of the injury, and would have been able to earn more but for the continuing effects of the injury. Specifically, the claimant was limited to doing part-time retail sales. (Tr. pp. 60-61).
Under these circumstances, there is substantial evidence in the record that the ongoing effects of the injury were, to some degree, the cause of the claimant’s reduced earnings subsequent to his discharge from the employer. Moreover, the findings are sufficient to demonstrate the basis of the ALJ’s order.
Neither do we agree with the assertion that the claimant’s temporary partial disability benefits should be limited to the equivalent of ten hours per week. To the contrary, the ALJ was satisfied that the injury was a partial cause of the post-injury wage loss. That is all that is required to entitle the claimant to benefits, and the claimant was not required to preclude the possibility that non-industrial factors were also contributing Horton v. Industrial Claim Appeals Office, supra (employee need not prove that the work-related injury was the sole cause of the wage loss).
IT IS THEREFORE ORDERED that the ALJ’s order date July 17, 1997, is set aside insofar as it determined the amount of temporary partial disability benefits to be awarded for the period January 29, 1996 through March 21, 1996. The matter is remanded for further proceedings and entry of a new order on this issue.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 30, 1998 to the following parties:
Delbert L. Rose, Jr., 1760 Pearl, #12, Denver, CO 80203
Storage Technology, Attn: Barbara Melton, 2270 S. 88th St., Louisville, CO 80028-4317
St. Paul Fire Marine Insurance, Attn: Kathy Redmond, P. O. Box 441565, Aurora, CO 80044-1565
Kara T. Birkedahl, Esq., 1801 Broadway, #930, Denver, CO 80202 (For Claimant)
Michael Barbo, Esq., 12250 E. Iliff Ave., #308, Aurora, CO 80014-1253 (For Respondents)
By: __________________________________________________