W.C. No. 4-207-093Industrial Claim Appeals Office.
October 7, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for temporary total disability benefits after April 5, 1994. We affirm.
This matter was before us previously. Our Order of Remand dated February 22, 1996, contains a statement of most of the relevant facts, and we will not repeat them here. Our order directed the ALJ to enter specific findings of fact “concerning whether or not the claimant’s wage loss, subsequent to the imposition of new restrictions in July 1994, was to some degree caused by the effects of the industrial injury.”
In an order dated May 10, 1996, the ALJ entered findings of fact similar to those contained in her prior order. Specifically, the ALJ credited the testimony of the employer’s witness that, had the claimant not resigned his employment for reasons unrelated to the injury, “the claimant could have continued to work at the respondent-employer’s following the imposition of restrictions” in July 1994. Based on this finding, the ALJ concluded that the employer “was able and willing to accommodate” the claimant’s restrictions, and therefore, the claimant “failed to carry his burden of showing that his wage loss following his voluntary termination was caused to some degree by his injury.” Thus, the ALJ denied the claim for temporary disability benefits.
I.
The claimant first contends that the ALJ’s May 10 order does not conform to our Order of Remand because the ALJ failed to resolve the question of whether the wage loss was “to some degree” caused by the injury. The claimant asserts that the ALJ’s order is merely conclusory and does not address the issue of whether the claimant could have continued to work under Dr. Pero’s July 1994 restrictions. We reject this argument.
An ALJ is not held to a standard of crystalline clarity in entering an order. What is required is that the findings of fact be sufficient to indicate the basis of the order, and therefore, provide a foundation for appellate review. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the basis of the ALJ’s order is clear. The ALJ credited the employer’s testimony that the claimant’s job could have been modified to meet the July 1994 restrictions but for the claimant’s prior, voluntary resignation. Thus, the ALJ concluded that the claimant would have remained employed had he not resigned. Moreover, the ALJ noted the lack of countervailing evidence and concluded that the claimant failed to carry his burden of proof to establish entitlement to benefits.
II.
The claimant’s next contention is that the ALJ’s finding that the employer was “able and willing” to accommodate the claimant’s restrictions is not supported by the evidence. To the contrary, the claimant contends that the employer’s witness merely testified that the employer “could have” accommodated the restrictions, not that it “would have.” We are not persuaded.
The ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). We are required to uphold the ALJ’s findings which are explicitly supported by the testimony, as well as plausible inferences drawn from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
It is true that the employer’s witness testified that the claimant’s job “could” have been modified to meet the restrictions imposed by Dr. Pero. (Tr. p. 24). However, the witness also testified as follows:
“What I was trying to say is: As the shop foreman, as far as any restriction, if we had received this restriction, while he was still working there, and, especially, as the shop foreman, there would be a lot of things he could do that were not related to what he had been doing, prior to the injury. I’m saying he can do paperwork. And, there are plenty of other people to carry things.” (Tr. p. 3).
In our view, the ALJ could plausibly interpret this testimony to mean that, had the claimant not resigned, the employer would have been willing to accommodate the claimant’s restrictions. This is particularly true in light of the fact that the claimant was a foreman, and had worked for the employer for several years. While other inferences are possible, we decline to substitute our judgment for that of the ALJ concerning the meaning of this testimony.
III.
The claimant’s final contention is that, regardless of whether the employer would have reemployed him, the employer made no such offer in writing. Therefore, the claimant contends that he is entitled to temporary total disability benefits because such benefits were not terminated under the statute currently codified at § 8-42-105(3)(d)(I), C.R.S. (1996 Cum. Supp.). We disagree.
As pointed out in our Order of Remand, PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), holds that, where a claimant loses the employment in which the injury occurred, the issue of fault is a “threshold” determination which must be made prior to consideration of the injured worker’s entitlement to temporary total disability benefits under § 8-42-105. If the claimant is found to be at fault, then he bears the burden to establish that the subsequent wage loss was “to some degree” caused by the injury rather than his own action.
The claimant’s argument is no different than the dissent of Justice Mullarkey in PDM Molding, Inc. v. Stanberg, supra.
Justice Mullarkey argued that § 8-42-105(3)(a)-(d) sets forth th only circumstances under which temporary disability benefits may be terminated, and termination for “fault” is not mentioned. Obviously, that view did not prevail.
Here, the record amply supports the ALJ’s determination that the claimant was at fault for his separation from the respondent-employer because he voluntarily resigned. Further, had the claimant not resigned, he would have continued employment within his restrictions. Moreover, the claimant did not present evidence of any substantial job search. Under the totality of the circumstances, the ALJ could logically conclude that imposition of the July 1994 restrictions did not impair the claimant’s ability to earn wages to any degree.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 10, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed October 7, 1996 to the following parties:
Ty S. Strain, P.O. Box 503, Cookeville, TN 30503
Intermountain Steel Mfg., Inc., 1235 Valley St., Colorado Springs, CO 80915-2881
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. — Interagency Mail
Pamela J. Adams Donnelly, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
By: ______________________