Opinion
W.C. No. 4-310-026
December 30, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated March 17, 1997, as corrected April 2, 1997, concerning her claim for temporary disability benefits. We modify the order, and as modified, affirm.
On November 27, 1995, the claimant suffered a right hand injury while working as a waitress for the employer. Due to the injury, the claimant was medically restricted from lifting over ten pounds. On January 7, 1997, the claimant reached maximum medical improvement (MMI).
At the hearing, the claimant admitted that the employer initially accommodated her restrictions. However, she testified that in early March 1996, the employer instructed her to return to her regular duties. Because she was unable to perform her regular duties, the claimant quit the employment on March 22, 1996, and suffered a wage loss. Thereafter, the claimant requested temporary total disability benefits for the period March 22, 1996 to January 7, 1997.
The ALJ found that the employer provided modified employment within the claimant's medical restrictions through March 22, 1996, and would have continued to provide modified employment had the claimant not voluntarily quit. Therefore, the ALJ determined that the claimant was "at fault" for the loss of her job with the employer. The ALJ also determined that the injury did not contribute to the claimant's subsequent wage loss, except for the period between August 26, 1996, and September 13, 1996. Consequently, the ALJ awarded temporary total disability benefits for the period August 26, 1996, through September 13, 1996, and denied all other claims for temporary disability benefits.
The applicable law is undisputed. To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court held 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 termination severs the causal connection between the injury and the subsequent wage loss. Under these circumstances, the claimant is precluded from receiving further temporary disability benefits unless she reestablishes the causal connection by proof that the injury contributed "to some degree" to the wage loss. Furthermore, PDM holds that if the claimant reestablishes a causal connection, temporary disability benefits shall be paid until "one of the four statutory criteria set forth is § 8-42-105(3) is satisfied." 898 P.2d at 549.
Here, the ALJ expressly determined that the claimant was "at fault" for the of loss of her job with the employer. See (Conclusions of Law 2). In so doing, the ALJ resolved the conflicts in the evidence against the claimant by crediting the testimony of the employer's owner, David Eddleman, over the contrary testimony of the claimant.
Moreover, the ALJ explicitly found that, for the period March 22, 1996 to August 25, 1996, the claimant failed to prove that her wage loss was caused by the injury. See (Conclusions of Law 3). Specifically, the ALJ found that after the claimant quit her job with the employer, she demonstrated the ability to earn wages by opening a restaurant where she worked long hours, and performed a variety of tasks. Because this finding is supported by substantial evidence in the record, it must be upheld on review. Section 8-43-301(8), C.R.S. 1997. Furthermore, this finding supports the ALJ's determination that the claimant failed to prove a causal connection between the injury and her temporary wage loss from March 22, 1996 to August 26, 1996. Therefore, it is immaterial that the record contains some evidence which, if credited, might support a finding that to some degree the injury contributed to the claimant's wage loss between March 22 and August 26, 1996. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences).
However, we agree with the claimant that the ALJ did not apply the correct legal standard in terminating temporary disability benefits effective September 14, 1996. As stated above, PDM holds that if a claimant who is at fault for the loss of modified employment reestablishes a causal connection between the injury and their temporary wage loss, temporary disability benefits shall be paid until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 1997. In other words, if the claimant reestablishes a causal connection between the injury and the temporary loss of wages, it is presumed that "to some degree," the injury continues to contribute to the wage loss until the occurrence of one of the events enumerated in § 8-42-105(3)(a)-(d).
Here, the ALJ expressly determined that the claimant reestablished a causal connection between the industrial injury and the temporary loss of wages commencing August 26, 1996. Accordingly, the issue is whether benefits terminated September 14, 1996, by operation of § 8-42-105(3)(a)-(d).
Insofar as pertinent, § 8-42-105(3)(d), provides that temporary disability benefits terminate when the claimant refuses a written offer of modified employment. Here, there is no finding or evidence that the claimant received a written offer of modified employment after August 26, 1996. (Tr. p. 43).
Moreover, because § 8-42-105(3)(d), requires the offer of modified employment to be in writing, evidence that the employer would have offered to reemploy the claimant, but for the prior separation, is insufficient to support the termination of temporary disability benefits under § 8-42-105(3)(d). See Trujillo v. Valleylab, Inc., W.C. No. 4-218-547, August 21, 1996. Therefore, the ALJ's finding that the employer would have accommodated the claimant's medical restrictions, if it had known the claimant was unemployed, does not support the termination of benefits on September 13, 1996.
Similarly, there is no finding or assertion that temporary disability benefits terminated pursuant to any other provision of § 8-42-105(3)(a)-(d), until January 7, 1997, when the claimant reached MMI. Under these circumstances, we must set aside the ALJ's termination of temporary disability benefits, and reverse the ALJ's denial of temporary disability benefits for the period September 14, 1996 to January 7, 1997.
In reaching our conclusions, we note that a claimant's effort to find employment is pertinent to whether the injury contributed "to some degree" to a claimant's post-separation wage loss. See Duncan v. Hyatt, W.C. No. 4-119-289 (August 11, 1995). However, the claimant's failure to seek employment after establishing the right to temporary disability benefits, is not grounds for terminating temporary disability benefits under § 8-42-105(3). PDM Molding, Inc. v. Stanberg, supra. Consequently, the ALJ's finding that the claimant failed to look for work after September 13, 1996, does not support the denial of temporary disability benefits after September 13, and the ALJ's reliance upon our conclusions in Duncan v. Hyatt, supra, is misplaced.
IT IS THEREFORE ORDERED that the ALJ's order dated April 2, 1997, is reversed insofar as it denies temporary disability benefits for the period September 14, 1996 to January 7, 1997. As modified, the order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 30, 1997 to the following parties:
Arna L. Cole, 2820 Orchard Ave., Apt. D, Grand Junction, CO 81501
Cow Palace, Inc., 1301 No. Main, Lamar, CO 81052-2115
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. — Interagency Mail
James M. Anderson, Esq., 559 E. Pikes Peak Ave., Ste. 212, Colorado Springs, CO 80903 (For the Claimant)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: _______________________________