Opinion
W.C. No. 4-160-011
January 26, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which suspended the claimant's temporary total disability benefits for the period of October 26, 1994 through December 26, 1994. We reverse.
The ALJ's findings may be summarized as follows. The claimant sustained a compensable injury on October 20, 1992. The respondents admitted liability for temporary total disability benefits which they continued to pay through the date of the June 14, 1995 hearing.
On September 23, 1994, the claimant's treating physician recommended that she undergo surgery as a result of the industrial injury. However, the ALJ found that the surgery was delayed until December 26, 1994, because of an intervening injury. Specifically, the claimant sustained a fall in March 1994 which aggravated her pre-existing phlebitis. Treatment of the phlebitis delayed the claimant's surgery for the industrial injury.
Under these circumstances, the ALJ concluded that the fall constituted an intervening event which delayed the claimant's attainment of maximum medical improvement (MMI) for the industrial injury. Consequently, the ALJ held that the claimant's wage loss was not related to the industrial injury from the date the respondents filed their petition to suspend through December 26, 1994. In support of this conclusion, the ALJ cited Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986).
As the respondents point out, the claimant failed to file a brief in support of her petition to review. The petition itself makes only general allegations of error that the findings do not support the order, and that the suspension of benefits "is not supported by applicable law."
Generally, we will not search the record for potential errors so as to assume the role of advocate for an appealing party. However, in this case, counsel for both parties made extensive arguments to the ALJ at the conclusion of the hearing. Counsel for the claimant argued that suspension of benefits was inappropriate because, during the disputed period, the claimant's wage loss was still attributable to the industrial injury. (Tr. p. 31). Specifically, counsel reasoned that the recommended surgery was ultimately unsuccessful and that the claimant never reached MMI.
In view of this specific argument, we consider it appropriate to address the issue of whether the ALJ properly held that the fall constituted an intervening event which caused the claimant's wage loss for the disputed period. We hold that fall, and the consequent aggravation of the phlebitis, was not an "intervening event" which justified the suspension of temporary total disability benefits.
In our view, the holding of the Supreme Court in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), is dispositive of the issues in this case. In Stanberg, the court held that, under § 8-42-103 (1)(a) (b), C.R.S. (1995 Cum. Supp.), and § 8-42-105 (1), C.R.S. (1995 Cum. Supp.), an award of temporary total disability benefits is mandatory if: (1) the injury or occupational disease causes the disability, (2) the injured employee leaves work as a result of the injury, and (3) the temporary disability is total and lasts more than three regular working days. If the claimant establishes these criteria, temporary total disability benefits must continue until one of the four events set forth in § 8-42-105 (3), C.R.S. (1995 Cum. Supp.) occurs. PDM Molding, Inc. v. Stanberg, 898 P.2d at 546.
The Stanberg court went on to indicate that, if a temporarily disabled claimant obtains post-injury employment and is separated from that work due to fault, a question arises as to whether the subsequent wage loss is "caused" by the industrial injury within the meaning of § 8-42-103 (1)(a). The court resolved this question by concluding that the work-related injury is the cause of subsequent wage loss if it "contributes to some degree" to the subsequent loss.
Applying these principles here, we conclude that the ALJ's findings do not support the conclusion that the fall is the type of "intervening event" which justifies suspension of temporary total disability benefits. Here, the respondents admitted that the industrial injury caused the claimant to become disabled, and that the disability caused her to miss work for more than three days. Moreover, the respondents do not contend that the claimant's disability abated prior to the fall and the subsequent recommendation for surgery. Since the claimant was already totally disabled by the injury at the time of the alleged "intervening event," the subsequent wage loss was necessarily caused by the injury "to some degree."
Further, the fall is not analogous to the type of "intervening event" discussed in PDM Molding, Inc. v. Stanberg. In Stanberg the court considered a post-injury separation from employment as raising the question of whether subsequent wage loss was "causally" connected to the industrial injury. This is apparently true because once a claimant returns to post-injury employment, she has to some extent demonstrated the capacity to earn wages. When the claimant loses such employment for fault, the court indicated that the burden shifts to the claimant to demonstrate that any subsequent wage loss was "to some degree" associated with the effects of the industrial injury.
Here, unlike the situation in Stanberg, the claimant never returned to employment subsequent to the respondents' admission of liability. Consequently, she has never demonstrated the capacity to earn any wages subsequent to the industrial injury. Under such circumstances, all wage loss is, to some extent, associated with the effects of the industrial injury. Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, (1995) (where claimant terminated from post-injury employment for reasons associated with the injury, subsequent wage loss was to some degree caused by industrial injury); Gallegos v. Owens Corning, W.C. No. 4-221-098, October 25, 1995 (pregnancy, which delayed surgery and attainment of MMI, did not constitute an intervening event under PDM Molding, Inc. v. Stanberg).
We recognize that a different result might have attained under the decision of the Court of Appeals in Roe v. Industrial Commission, supra. However, the holding in Roe was largely predicated on Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), and the statutory provisions for temporary disability. Although PDM Molding, Inc. v. Stanberg did not entirely overrule Monfort, it significantly reduced the reach of the case by holding that termination for fault does not completely bar subsequent claims for temporary disability. In view of the Stanberg court's discussion of the pertinent statutes and its revision of Monfort, we conclude that Roe is no longer good law.
It follows that the ALJ erred in suspending the claimant's benefits for the disputed period, and holding that respondents are entitled to "take a credit against future permanent disability" as a result of the overpayment. The ALJ's order must be reversed.
IT IS THEREFORE ORDERED that the ALJ's order, dated July 10, 1995, is reversed, and the claimant's benefits shall not be suspended for the period of October 26, 1994 through December 26, 1994.
IT IS FURTHER ORDERED that the respondents are not entitled to take any credit as a result of the ALJ's order.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed January 26, 1996 to the following parties:
Mary Stuart Dill, 22047 WCR 64 1/2, Greeley, CO 80631
Owl Canyon Ltd. Partnership, P.O. Box 2263, Ft. Collins, CO 80522-2263
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Richard K. Blundell, Esq., 800 8th Ave., Ste. 202, Greeley, CO 80631 (For the Claimant)
By: ___________________