W.C. No. 4-218-547Industrial Claim Appeals Office.
August, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which awarded temporary disability benefits subsequent to December 31, 1993, the date the claimant accepted a voluntary retirement package and separated from her employment at Valleylab, Inc. We affirm.
This matter was previously before us. In an order dated February 7, 1996, we set aside the ALJ’s prior order denying the claim for temporary disability benefits. The ALJ’s order was based upon his determination that the claimant was “at fault” for her employment separation. However, we concluded that the ALJ’s determination of “fault” was not dispositive of the claim for temporary disability benefits, because under PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the claimant may recover further temporary disability benefits if, “to some degree,” the industrial injury contributed to the claimant’s post-separation wage loss.
We further concluded that the ALJ’s findings were insufficient to ascertain whether he determined that the claimant had reestablished the requisite causal connection between her wage loss and the industrial injury. Consequently, we remanded the matter to the ALJ for additional findings of fact and a new order.
On remand, the ALJ credited the claimant’s testimony that her treating physician, Dr. Bronstein, recommended to her that she retire to improve the symptoms caused by the industrial injury. Therefore, the ALJ determined that to some degree, the industrial injury contributed to the claimant’s decision to retire and subsequent wage loss, and ordered the respondents to pay temporary total disability benefits from December 31, 1993 to April 28, 1994, the date the claimant reached maximum medical improvement.
I.
On review, the respondents contend that the ALJ’s finding of a causal connection between the industrial injury and the claimant’s subsequent wage loss is not supported by the evidence or the applicable law. The respondents argue that the application of PDM to these circumstances results in a “gross injustice” to the respondents because their liability for temporary disability benefits is dependent on making a written offer of modified employment under § 8-42-105(3)(d), C.R.S. (1995 Cum. Supp.), even though the claimant has already rejected an offer of modified employment by accepting a voluntary retirement. Therefore, the respondents contend that PDM
is not intended to apply to these circumstances. We reject this argument.
As the respondents concede, a causal connection between the industrial injury and a subsequent wage loss is presumed where the disabled employee is not “at fault” for the employment separation. Under such circumstances, it is unnecessary for the ALJ to determine whether the industrial injury has contributed to the wage loss following the employment separation.
In contrast, PDM presumes that the claimant has volitionally caused the loss of the employment, where the claimant is found to be “at fault” for the loss of the employment out of which the industrial injury occurred. See PDM Molding, Inc. v. Stanberg, supra; Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994) (“fault” means volitional). Nevertheless, the PDM court held that, regardless of whether the claimant was “at fault” for the employment separation, the claimant is entitled to further temporary disability benefits if a causal connection between the industrial injury and the wage loss is reestablished. The court also interpreted § 8-42-105 C.R.S. (1995 Cum. Supp.), to require that where the causal connection is reestablished temporary disability benefits must be paid until the occurrence of one of the events enumerated in § 8-42-105(3)(a)-(d), C.R.S. (1995 Cum. Supp.). Subsection 8-42-105(3)(d) terminates disability benefits when the claimant fails to begin modified employment offered in writing by the employer.
PDM represents the current state of the law concerning an injured employee’s entitlement to temporary disability benefits where the injured employee is at fault for the loss of the employment out of which the injury occurred. Therefore, we are bound by the principles established in that case.
Furthermore, the pertinent facts in PDM are not significantly different from the facts presented here. The claimant in PDM was fired after refusing to discuss his attendance record with his employer. Accordingly, the record contained evidence that the claimant in effect, voluntarily rejected the employer’s “offer” of continuing employment by engaging in behavior inconsistent with continued employment. Despite this evidence, the court held that the claimant was entitled to further temporary disability benefits if he reestablished a causal connection to the industrial injury, and the employer failed to make a written offer of modified employment in accordance with § 8-42-105(d). Therefore, we are persuaded that the PDM rationale applies to circumstances where subsection 8-42-105(3)(d) provides the “only means” for the respondents to limit their liability for temporary disability benefits awarded after a voluntary employment separation. The respondents’ further arguments to the contrary do not establish grounds which afford us a basis to disturb the ALJ’s order, and are matters to be addressed by the General Assembly.
II.
The respondents also argue that even if the injury contributed to the claimant’s decision to retire, the injury did not contribute to the subsequent wage loss. In support the respondents rely upon evidence that Dr. Bronstein did not remove the claimant from work during the disputed period, that the claimant performed full time light duties up to the date of her retirement, and that the employer would have continued to provide light duty work had the claimant not voluntarily resigned. The respondents also cite Duncan v. Hyatt Corporation, W.C. No. 4-119-289, August 11, 1995; aff’d Duncan v. Hyatt Corporation (Colo.App. No. 95CA1473, January 18, 1996) (not selected for publication). We are not persuaded.
The determination of whether the claimant has established a causal connection between the industrial injury and a subsequent wage loss is factual in nature. Consequently, the ALJ’s determination must be upheld if supported by substantial evidence, and plausible inferences drawn from conflicts in the evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.) General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Here, the claimant testified that she understood Dr. Bronstein’s recommendation to mean that the only way her industrial injury would improve was if she stopped working. (Tr. pp. 9, 10). She also stated that at the time she retired, she was not physically capable of continuing the light duty employment provided by Valleylab, Inc. (Tr. p. 15-16).
The record does not contain hard, certain evidence rebutting the claimant’s testimony concerning Dr. Bronstein’s recommendation. Therefore, we may not disturb the ALJ’s determination to credit the claimant’s testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Furthermore, regardless of whether the respondent-employer would have continued to offer light duty work to the claimant, the claimant’s testimony indicates that her decision to retire, and not seek or perform any other employment was due, at least in part, to pain in her arms from the industrial injury and her belief that it was necessary to refrain from all employment to treat the injury. (Tr. p. 15). Therefore, the claimant’s testimony supports the ALJ’s finding that the claimant’s wage loss after December 31 was to some degree attributable to her disability from the industrial injury. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ findings may be inferences drawn from circumstantial evidence).
Moreover, Duncan v. Hyatt Corporation, supra, does not compel a contrary result. In Duncan the ALJ denied a claim for temporary disability benefits following a voluntary resignation. The order was based upon the ALJ’s decision to resolve conflicts in the evidence against the claimant. As a result, the ALJ determined as a matter of fact that the industrial injury did not physically restrict the claimant from performing her regular employment duties at the time she resigned to accept a better paying job for personal reasons unrelated to the injury. In that case, the ALJ also determined that the claimant failed to attend physical therapy treatments after she resigned from the better paying job, despite testimony that she resigned to engage in treatment for the industrial injury. Further, the ALJ determined that the claimant’s activities after her resignation were inconsistent with a causal connection between the wage loss and the industrial injury. Because the ALJ’s findings were supported by substantial evidence in the record, the court upheld the ALJ’s determination that the claimant failed to sustain her burden to reestablish a causal connection between the industrial injury and the wage loss. Thus, contrary to the respondents’ argument, Duncan is not factually analogous to the circumstances presented here. In fact Duncan is illustrative of the rule that the ALJ’s credibility determinations and resolution of conflicts in the evidence are binding on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court ofAppeals, 2 East 14th Avenue, Denver, CO 80203, byfiling a petition for review with the court, with service ofa copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty(20) days after the date this Order is mailed, pursuantto section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed __________________ to the following parties:
Rosie Trujillo, 346 E. Longs Peak, Longmont, CO 80501
Valleylab, Inc., Attn: Mark Magill, Personnel Dept., 5920 Longbow Dr., Boulder, CO 80301
Wausau Ins. Co., Attn: George Fairbanks, 9110 E. Nichols Ave., #100A, Englewood, CO 80112
Ruth K. Irvin, Esq., 5353 Manhattan Cir., #101, Boulder, CO 80303 (For the Claimant)
Kristie E. Anderson, Esq. Robert A. Weinberger, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
BY: _______________________