W.C. No. 4-203-754Industrial Claim Appeals Office.
July 29, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which ordered them to pay temporary total disability benefits commencing January 26, 1996 and continuing. We affirm.
The claimant was employed as a bus driver when she sustained a compensable back injury on December 26, 1992. The claimant was able to return to work on January 4, 1993.
In August 1993 the claimant sustained a second compensable injury to her wrist. The wrist injury caused the claimant to become temporarily totally disabled on November 9, 1993. The claimant reached maximum medical improvement (MMI) for the wrist injury on November 22, 1995, and was released with permanent restrictions against lifting more than ten pounds. The respondent-employer did not offer the claimant any employment within these restrictions, although the ALJ found that she was “capable of earning wages following her release to return to modified work.”
In the meantime, symptoms caused by the 1992 back injury worsened. On January 26, 1996, Dr. Sanderford, the treating physician for the back injury, restricted the claimant from all work. The ALJ concluded that because the claimant is unable to earn any wages, and has not reached MMI for the back injury, she is entitled to temporary total disability benefits commencing January 26.
On review, the respondents contend that the ALJ erred in awarding temporary total disability benefits commencing January 26. The respondents argue that the claimant’s wage loss commencing January 26 must be attributed to the permanent restrictions resulting from the 1993 wrist injury. The respondents reason that the wrist injury precluded the claimant from returning to her regular work as a bus driver, and therefore, any subsequent wage loss must be attributed to that injury. We are not persuaded.
Temporary disability benefits are payable for a claimant’s loss of earning capacity during the healing period prior to MMI Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). The amount of such benefits is measured by the degree of actual wage loss attributable to the injury, not the degree of physical impairment or the claimant’s willingness to seek work. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). In order to demonstrate the right to temporary disability benefits, the claimant must prove that the injury has caused disability, and that the claimant left work as a result of the injury. Section 8-42-103(1)(a), C.R.S. (1996 Cum. Supp.); PDM Molding, Inc. v. Stanberg, supra.
In order to demonstrate that an injury has “caused” disability, the claimant must show that medical restrictions resulting from the injury render her unable to perform her regular duties. PDM Molding, Inc. v. Stanberg, supra. A claimant “leaves work as a result of the injury” if the limitations caused by the injury contribute “to some degree” to the claimant’s inability to secure post-injury employment at pre-injury wage levels. PDM Molding, Inc. v. Stanberg, supra. Significantly, this test does not require that the industrial injury be the sole cause of a wage loss. To the contrary, temporary disability benefits may be denied only when the work-related injury plays no part in the subsequent wage loss Horton v. Dill, ___ P.2d ___ (Colo.App. No. 96CA0284, November 29, 1996).
The respondents’ arguments notwithstanding, the principles announced in PDM Molding, Inc. v. Stanberg, supra, control the result in this case. Here, the claimant’s back injury occurred in December 1992. The wrist injury “intervened” in 1993, and resulted in permanent restrictions which precluded the claimant from returning to work as a bus driver. However, the occurrence of the wrist injury does not negate the fact that the January 1996 restrictions, attributable to the 1992 back injury, were also sufficient to preclude the claimant from performing her pre-injury work as a bus driver. Thus, the claimant’s back injury was one “cause” of her inability to perform the pre-injury employment as of January 26, 1996.
It may be true that the restrictions stemming from the 1993 wrist injury were also a cause of the claimant’s loss of wages in January 26, 1996. However, the restrictions caused by the wrist injury did not totally preclude the claimant from seeking employment, and the ALJ found that the claimant had residual earning capacity despite the restrictions stemming from the wrist injury. However, as of January 26, the restrictions caused by the back injury resulted in total disability. Therefore, the 1992 back injury necessarily contributed “to some degree” to the claimant’s wage loss as of January 26. Cf. Horton v. Dill, supra.
The respondents have also asserted that allowing the claimant to receive permanent partial disability benefits from the wrist injury and temporary total disability benefits for the back injury constitutes an impermissible double recovery. The respondents reason that the “first recovery is for the loss of earning capacity caused by the wrist injury and the second recovery is for having been temporarily restricted from performing a job that she could no longer do.” We reject this argument.
Temporary disability benefits are designed to replace an immediate loss of wages during the healing period, while permanent disability benefits are designed to compensate for the claimant’s loss of earning capacity now and in the future Colorado AFL-CIO v. Donlon, supra. Thus, in Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994), the Court of Appeals held that, where a claim was reopened based on a worsened condition, it was proper to award concurrent permanent partial and temporary total disability benefits for th same injury.
Here, the payment of permanent partial disability benefits for the claimant’s wrist injury represents compensation for her permanent loss of earning capacity. Conversely, the award of temporary total disability benefits represents compensation for the claimant’s inability to earn any wages prior to reaching MMI for the back injury. The fact that both injuries occurred in the course of the same employment, and that either injury would preclude the claimant from returning to that employment, does not alter the different purposes for which the two types of benefits are being paid in this case. Thus, there was no error.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
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. (1996 Cum. Supp.).
Copies of this decision were mailed July 29, 1997 to the following parties:
Dorothy M. Williams, 45121 WCR 41, Pierce, CO 80650
Ault-Highland School District RE-9, 209 W. 1st St., Ault, CO 80610-9628
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq., (Interagency Mail).
Katherine E. Allen, Esq., 705 14th St., Greeley, CO 80631, (For the Claimant).
Ronald H. Nemirow, Esq., 1660 Wynkoop, Ste. 900, Denver, CO 80202-1197, (For the Respondents).
By: ________________________________