W.C. No. 4-220-712Industrial Claim Appeals Office.
May 1, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) concerning temporary partial disability benefits. We affirm.
On review, the respondents contend that the claimant was released to return to regular employment by her attending physician, Dr. Bennett, and therefore the respondents argue that the claimant’s entitlement to temporary disability benefits terminated pursuant to § 8-42-105(3)(c), C.R.S. (1995). The respondents also argue that the claimant is precluded from receiving further temporary disability because her disability is the result of an “intervening event.”
In response, the claimant contends that the “termination” of benefits was not an issue before the ALJ. Accordingly, the claimant objects to the issue being raised for the first time on appeal. We agree with the claimant.
The record reveals that the claimant sustained a closed head injury on August 4, 1994, during a motor vehicle accident, and underwent treatment by Dr. Bennett, a psychologist. At the time of the injury, the claimant was attending college full-time at the Colorado State University (CSU), and working for CSU 39 hours per week under a “work study” program. The respondents admitted liability for temporary total disability benefits commencing August 5, 1994, based upon a 40 hour work week.
In November 1994, Dr. Bennett released the claimant to return to “part-time” work with instructions to “gradually increase her hours at work to full-time.” Dr. Bennett also released the claimant to return to school full-time at CSU in the Spring semester which began in January. By January 1995, the claimant had increased her work week to 33-35 hours, and returned to school full-time. However, in February 1995 Dr. Bennett reported that the residual effects of the industrial injury precluded the claimant from attending college full-time and working more than seven to ten hours per week. Consequently, the claimant reduced her work week to 10 hours.
At the commencement of the hearing, the respondents’ counsel stated that the issue before the ALJ was the respondents’ “petition to modify.” (Tr. p. 3). In particular the respondents’ filed a “Petition to Modify, Terminate or Suspend Compensation” which sought permission to modify the claimant’s temporary partial disability rate “to reflect [the claimant’s] actual average weekly wage while school is in session.” Furthermore, during closing argument, counsel for the respondents indicated that the respondents were seeking a “very simple order” which required the payment of temporary partial disability benefits based upon the difference between a 39 hour work week and a 33 hour work week “until stopped due to rule or statute.” (Tr. p. 18).
Based upon this record, we agree with the claimant that the respondents’ argument for the termination of benefits was not presented to the ALJ. Therefore, the argument is not properly before us on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (an issue may not be raised for the first time on appeal).
Moreover, even if the issue were properly before us, we would reject the respondents’ argument for the termination of temporary disability benefits. Section 8-42-105(3)(c) provides for the termination of temporary disability benefits where the “attending physician gives the employee a written release to return to regular employment.”
Here, the ALJ found that Dr. Bennett released the claimant to “part-time” employment in November 1994, and in February 1995 restricted the claimant to working no more than 10 hours per week. (Findings of Fact 4, 6). The ALJ’s findings are supported by the undisputed facts and Dr. Bennett’s medical records, and thus, must be upheld. 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 ). Furthermore, the ALJ’s findings reflect his determination that the treating psychologist has not released the claimant to regular employment. See McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Consequently, the ALJ’s award is not contrary to § 8-42-105(3)(c).
Neither are we persuaded that the claimant’s decision to attend college full-time in January 1995 was an intervening event which severed the causal connection between the claimant’s industrial injury and her subsequent wage loss. Rather, we are bound by the ALJ’s determination that the claimant’s enrollment as a full time student was a requirement of her employment. (Finding of Fact 7).
It is undisputed that the claimant is employed at CSU as part of a “work study” financial aide grant. The claimant testified that to remain eligible for the work-study grant she was required her to take at least twelve credits or in other words be a full-time student. (Tr. pp. 14, 15). Consequently, the claimant was not free to choose whether the enroll as a full time student or work.
To the contrary, had the claimant chosen to work instead of attending school full time she would not have qualified for “work-study.” Consequently, her failure to enroll in school full-time would have resulted in a total wage loss, and thus, increased the respondents’ liability for temporary disability benefits.
Lastly, Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986) does not compel a contrary result. See also Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995). Unlike the facts presented here, the claimant’s disability in Roe was “entirely” the result of an intervening non-industrial injury and the claimant’s refusal to accept gainful, suitable employment. In contrast, the respondents in this matter concede that the claimant’s inability to work full time and attend school full time in the Spring of 1995 was a result of the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 12, 1995, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed May 1, 1996 to the following parties:
Kim Winslow, 1034 W. Plum, #C-3, Ft. Collins, CO 80521
Colorado State University, c/o Division of Risk Management, 225 E. 16th Ave., 6th Flr., Ft. Collins, CO 80203
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
John D. Aylward, Esq., 116 N. College Ave., Ste. 1, P.O. Box 1905, Ft. Collins, CO 80522 (For the Claimant)
BY: _______________________