W.C. No. 4-391-300Industrial Claim Appeals Office.
December 8, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which determined the claimant is entitled to ongoing temporary partial disability benefits commencing September 21, 1998. The respondents assert the ALJ failed to determine whether the claimant was at fault for the loss of modified employment, and also, whether the subsequent wage loss was to some degree caused by the industrial injury. We affirm.
On August 2, 1998, the claimant was concurrently employed by Denny’s Restaurant and respondent-employer Black Angus. The ALJ determined that on August 2 the claimant sustained a compensable back injury while working for Black Angus. The claimant was temporarily and totally disabled from both jobs for the period August 3, 1998, through August 16, 1998.
On August 17, 1998, the claimant returned to his job at Denny’s. Commencing August 28, 1998, the claimant returned to work at Black Angus. However, the claimant’s medical restrictions precluded him from performing some of his regular duties, particularly those involving lifting more than 10 pounds. (Tr. pp. 23, 33-34; Findings of Fact 11, 12).
The ALJ found that on September 21, 1998, the claimant was “separated” from his employment with Black Angus because he was not able to produce a “valid social security number” establishing that he possessed legal authorization to work in the United States. The ALJ also found that Black Angus employed claimant for two years prior to the injury, and the claimant’s “work status” did not become an issue until after the injury.
Under the circumstances, the ALJ concluded the claimant is entitled to temporary partial disability benefits commencing September 21, 1998, based on his loss of wages from Black Angus. In support, the ALJ stated the claimant “had work restrictions at the time of the separation from employment and the offer of modified employment was therefore no longer available.” (Conclusions of Law 5).
On review, the respondents contend the ALJ’s findings of fact are insufficient to establish whether he properly applie PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo.App. 1995), in granting the award of temporary partial disability benefits. First, the respondents argue the ALJ failed to make any finding of fact concerning whether or not the claimant was “at fault” for the “separation” from Black Angus. The respondents further contend the ALJ failed to make any findings of fact concerning whether or not the claimant’s post-separation wage loss was to “some degree” caused by the industrial injury. Finally, the respondents contend the record contains no evidence that the claimant’s post-separation wage loss was the result of the injury rather than his work status. Because we conclude the ALJ found that the claimant’s wage loss was to some degree caused by of the injury, and because we conclude this finding is supported by substantial evidence, we affirm the order.
Section 8-42-103(1), C.R.S. 1999, requires that, in order for a claimant to receive temporary disability benefits, the injury or occupational disease must cause disability. [Statute significantly amended by the addition of subsection (1) (g) for injuries arising on or after July 1, 1999]. Section 8-42-106(1), C.R.S. 1999, provides that a claimant who suffers temporary partial disability “shall receive sixty-six and two-thirds percent of the difference between said employee’s average weekly wage at the time of the injury and said employee’s average weekly wage during the continuance of the temporary partial disability.”
In PDM Molding, Inc. v. Stanberg, supra, our Supreme Court held that an industrial injury does not “cause” temporary total disability if the claimant is at fault for the loss of post-injury employment out of which the injury arose, and the claimant is unable to establish that limitations resulting from the industrial injury were to some degree the cause of his inability to secure employment at pre-injury wage levels. Id. at 548. Thus, temporary benefits may be denied “only when the work-related injury plays no part in the subsequent wage loss.”Horton v. Industrial Claim Appeals Office, 942 P.2d 1209
(Colo.App. 1996). The question of whether the claimant has proven that the post-separation wage loss is to some degree caused by the injury is one of fact for determination by the ALJ. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496
(Colo.App. 1995).
Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning the evidence he considers determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
We assume, arguendo, that the ALJ determined the claimant to be at fault for the separation from employment. However, the issue of fault is not dispositive since we conclude the ALJ determined that the injury was to some degree the cause of the wage loss commencing September 21.
We are satisfied the ALJ drew the requisite inference concerning the causal relationship between the industrial injury and the post-separation wage loss. Although the ALJ made no explicit finding that the claimant’s post-separation wage loss was to some degree caused by the injury, the ALJ’s oral ruling was expressly based on a PDM analysis. (Tr. p. 91); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, 783 P.2d 269 (Colo. 1989) (the ALJ’s oral findings may be considered when interpreting the ALJ’s written findings). Similarly, the written order expressly recognizes that the case is controlled by principles announced i PDM Molding, and also cites Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997), as legal authority for the order. Considering the ALJ’s reliance on these authorities, and the accompanying findings of fact, we are satisfied the ALJ recognized and applied the correct legal standard to the evidence before him. Riddle v. Ampex Corp., supra.
Specifically, the ALJ found the claimant suffered from restrictions which impaired his ability to perform his regular employment at Black Angus. Further, the ALJ found the claimant was able to maintain employment, both before and after the injury, despite his legal work status. Taken together, these findings of fact support the ALJ’s inference that the claimant was entitled to temporary partial disability benefits subsequent to his separation from Black Angus. Champion Auto Body v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 28, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 8, 1999 to the following parties:
Jesus Sepulbeda, 5340 W. 5th Ave. #B, Lakewood, CO 80226
Black Angus Restaurant, Attn: Manager, 375 Union Blvd., Lakewood, CO 80228
Superior National Insurance Group, P.O. Box 101630, Denver, CO 80250-1630
Rodrigo S. Gloria, Esq., Law Firm of Rod Gloria, P.C., 1750 High St., Denver, CO 80218 (For Claimant)
Clyde Hook, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy