IN THE MATTER OF THE CLAIM OF TY S. STRAIN, Claimant, v. INTERMOUNTAIN STEEL MANUFACTURING, INC., Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-207-093Industrial Claim Appeals Office.
February 22, 1996

ORDER OF REMAND

The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his claim for temporary total disability benefits. We set the order aside and remand for entry of a new order.

The ALJ’s findings may be summarized as follows. On March 22, 1994, while in the course of his employment as a welder, the claimant sustained an exposure to zinc fumes. As a result, the claimant admittedly sustained temporary total disability between March 27, 1994 and April 3, 1994.

However, one of the treating physicians released the claimant to regular employment on April 4, 1994, and he returned to regular employment until April 6, 1994. On that date, the claimant voluntarily resigned for reasons unrelated to the industrial injury.

On July 26, 1994, new restrictions were placed on the claimant by a second treating physician. However, the ALJ found that the respondent-employer would have modified the claimant’s job to meet the new restrictions had the claimant remained employed.

Under these circumstances, the ALJ concluded that the claimant was not entitled to temporary total disability benefits after his April 6 resignation. Relying on Padilla v. Digital Equipment Corp., 902 P.2d 414
(Colo.App. 1994), the ALJ stated that “when a worker resigns for reasons unrelated to his work-related injury, his lost wages are due to his own fault and not due to the injury.” The ALJ stated that, because the claimant’s resignation was the equivalent of a “volitional act,” he was not entitled to temporary disability benefits after April 6.

On review, the claimant contends that the ALJ’s reliance on th Padilla v. Digital Equipment Corp., decision is misplaced. The claimant reasons that the issue in Padilla was the definition of “fault,” not the effect of a separation for “fault” on a claim for subsequent temporary disability benefits.

Moreover, the claimant contends that the Supreme Court’s ruling in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), mandates an award of temporary total disability benefits. The claimant reasons that when new restrictions were imposed on July 26, he reestablished a causal connection between his injury and subsequent wage loss. Therefore, he argues that benefits should have been paid until terminated under the provisions of §8-42-105(3), C.R.S. (1995 Cum. Supp.). Because we conclude that the ALJ may have applied an incorrect legal standard, and because the findings of fact are insufficient to support appellate review, we remand for entry of a new order. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).

A review of the holding in PDM Molding, Inc. v. Stanberg is necessary to understand our ruling in this case. In PDM Molding, Inc., the claimant sustained an injury on March 26, 1992. However, the claimant completed his regular shift. That evening, the claimant was terminated following a dispute with his supervisor.

On March 31, 1992, the claimant was examined by a physician who imposed restrictions on the claimant. The restrictions precluded the claimant from performing his usual and customary employment. However, the court’s opinion indicates that light duty would have been available but for the claimant’s separation. Under these circumstances, the ALJ awarded temporary total disability benefits commencing March 27, 1992.

Relying on Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), the respondents appealed the ALJ’s order to us arguing that the claimant was terminated for “fault,” and therefore, not entitled to temporary disability benefits after the separation. However, we held tha Monfort was inapplicable because that case was limited to circumstances where an injured employee, who is temporarily unable to perform regular employment, is terminated for cause from post-injury modified employment. However, the Court of Appeals vacated our order holding that Monfort was inapplicable, and concluded that the issue of “fault” for a separation is a “threshold question” which must be resolved prior to consideration of an injured worker’s claim for temporary total disability benefits under §8-42-105. See PDM Molding, Inc. v. Stanberg, 885 P.2d 280 (Colo.App. 1994).

Ultimately, the Supreme Court agreed with the Court of Appeals that where a claimant is injured, and is “subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault.” PDM Molding, Inc. v. Stanberg, 898 P.2d at 849. If the claimant was “at fault,” the ALJ must address the question of whether the subsequent “wage loss was caused in part by the injury or rather was caused only by the termination for fault.”PDM Molding, Inc. v. Stanberg, 898 P.2d at 548. Resolution of this issue depends on whether the subsequent wage loss is “to some degree” the result of the industrial injury. If so, benefits must continue until “one of the four statutory criteria set forth is § 8-42-105(3) is satisfied.”898 P.2d at 549.

Applying these principles here, it is apparent that the ALJ determined that the claimant was “at fault” for the separation from the respondent-employer. However, the ALJ’s reliance on Padilla v. Digital Equipment Corp., supra, indicates that she did not consider whether, given the claimant’s fault, the claimant’s subsequent wage loss was “to some degree” related to the injury. In this regard, we note that the record contains evidence that the restrictions imposed in July 1994 would preclude the claimant from performing his regular duties with the respondent-employer, and that the claimant testified he has not been employed since the termination. (Tr. pp. 10, 13). Thus, there is evidence from which the ALJ might infer a causal connection between the injury and wage loss after July 26.

Under these circumstances, we conclude that the matter must be remanded to the ALJ for 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 remanding for this determination, we should not be understood as expressing any opinion concerning the weight of the evidence or the credibility of the witnesses.

The respondents’ argument notwithstanding, we do not believe that the ALJ made an “implicit” determination concerning the cause of the claimant’s wage loss after July 26. To the contrary, the ALJ’s reliance on th Padilla decision indicates that the ALJ based her order on the law as it existed under Monfort of Colorado v. Husson, supra, not the principles announced in PDM Molding, Inc. v. Stanberg, supra. In fact, we note that the Supreme Court granted certiorari in the Padilla case, vacated the judgment of the Court of Appeals, and remanded the matter for “reconsideration in light of PDM Molding, Inc. v. Stanberg.” The Court of Appeals has since reconsidered its the Padilla decision, and remanded for additional proceedings in accordance with PDM Molding, Inc. See Padilla v. Digital Equipment Corp, ___ P.2d ___ (Colo.App. No. 93CA1536, November 24, 1995).

Further, we have considered the claimant’s argument that, when new restrictions were imposed in July 1994, he “reestablished” the causal connection between his injury and the wage loss, as a matter of law. However, we are not persuaded by this argument.

Initially, the Supreme Court’s holding in PDM Molding, Inc. v. Stanberg indicates that the determination of whether a wage loss is “caused” by an industrial injury, as opposed to the claimant’s own actions, is an initial determination which must be made before consideration of the factors which would “terminate” temporary disability under § 8-42-105(3) See Also Duncan v. Hyatt Corporation, Colo. App. No. 95CA1473, January 18, 1996 (not selected for publication). Moreover, issues involving the “cause” of a wage loss are generally factual in nature. J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989).

Thus, we have held that where a claimant returns to regular employment, or continues to perform regular employment after an injury, and is at fault for a termination from that employment, the subsequent imposition of disabling restrictions does not necessarily compel a finding that the claimant has proven that the post-termination wage loss is causally connected to the work-related injury. Rather, we have held that the cause of the claimant’s wage loss is a factual issue which may depend, in part, on the existence of evidence that the employer could and would have provided employment within the subsequently imposed restrictions, but for the claimant’s separation for cause. See Vigil v. King Soopers, Inc.,
W.C. No. 4-196-376, May 1, 1995; Smith v. M.A. Mortenson,
W.C. No. 4-205-636, May 31, 1995. If the employer would have provided such employment, the issue becomes whether the subsequent wage loss was, “to some degree,” caused by the injury.

It is true that, in Estes v. Schlage Lock, W.C. No. 4-154-405, December 11, 1995, a contrary result was reached based on an analysis similar to that advanced by the claimant in this matter. Specifically, we relied on El Paso County Dept. of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993), for the proposition that where the claimant is not subject to disabling medical restrictions at the time she is separated for fault, the separation is not an event which chronologically intervenes between the claimant’s disability and the wage loss. Therefore, we concluded that the “fault” determination was not material to the claimant’s entitlement to temporary disability benefits after the imposition of restrictions.

However, shortly after we issued our decision in Estes, the Court of Appeals issued Duncan v. Hyatt Corporation, supra. Similar to the facts i Estes, the claimant in Duncan was returned to her regular employment, but was subsequently terminated for fault. Therefore, the Duncan claimant underwent surgical treatment for the industrial injury which resulted in the imposition of disabling lifting restrictions. Despite this chronological sequence of events, the court concluded that the “fault” determination was still a threshold issue in determining the claimant’s entitlement to temporary disability benefits.

In light of Duncan, we are now persuaded that a “fault” determination under PDM is a “threshold issue” regardless of whether the claimant is subject to medical restrictions at the time of the separation from employment, or only after the separation. Therefore, we will no longer follow the reasoning in Estes.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEAL PANEL

___________________________________ David Cain
___________________________________ Kathy E. Dean

Copies of this decision were mailed February 22, 1996 to the following parties:

Ty S. Strain, 412 North Franklin, Colorado Springs, CO 80903

Intermountain Steel Mfg., Inc., 1235 Valley St., Colorado Springs, CO 80915-2881

Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. — Interagency Mail

Pamela J. Adams Donnelly, Esq., 90 S. Cascade Ave., Ste. 300, P.O. Box 2940,

Colorado Springs, CO 80901-2940 (For the Claimant)

By: ___________________