Opinion
W.C. No. 4-154-405
December 11, 1995
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) concerning temporary total disability benefits. We affirm the order in part, and reverse in part.
The following facts are undisputed. The claimant suffered an occupational disease on November 9, 1992 while employed with Schlage Lock (Schlage). The respondents admitted liability for the payment of temporary total disability benefits from November 13, 1992 to November 24, 1992. Thereafter, the claimant returned to work at Schlage performing modified duties. Pursuant to a release from Dr. Larson, the claimant resumed her regular employment on April 5, 1993. On April 26, 1993, the claimant's employment was terminated for an accumulation of eight absence "occurrences" in violation of Schlage's attendance policy.
On July 29, 1994, the claimant underwent surgical treatment of the industrial injury and the respondents reinstated temporary total disability benefits. The respondents subsequently petitioned to suspend benefits effective August 23, 1994, based upon Dr. Labosky's release to modified employment. The parties also agree that the claimant has not returned to employment since April 26, 1993, and has not reached maximum medical improvement.
The ALJ found that the claimant was fired for "cause," and that, had the claimant not been terminated from this employment, Schlage would have continued to employ the claimant to perform modified work. Therefore, the ALJ determined that the claimant failed to prove that her post-termination wage loss was caused by the industrial injury, and denied the claimant's request for temporary total disability benefits between April 26, 1993 and July 29, 1994.
The ALJ further determined that the claimant was released to return to modified employment on August 23, 1994, and that, had the claimant not been terminated for cause, she would have been able to continue performing modified employment with Schlage. Therefore, the ALJ granted the respondents' petition to terminate temporary total disability benefits effective August 23, 1994.
I.
On review, the claimant first contends that the ALJ applied the wrong legal standard to find that the claimant was "at fault" in the termination of her employment. We do not consider the merits of this argument, because we conclude that the claimant's "fault" is immaterial.
To receive an award of temporary total disability benefits, the claimant must prove a causal connection between a work-related injury, and a subsequent wage loss. Section 8-42-103(1), C.R.S. (1995 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The claimant sustains her burden of proof if she establishes that a work-related injury physically precludes her from performing her regular employment duties, and "as a result of the injury, "the claimant suffers an actual wage loss. Once the claimant has sustained her burden of proof, temporary total disability benefits continue until the occurrence of one of the events listed in § 8-42-105(3) (a)-(d), C.R.S. (1995 Cum. Supp.).
Insofar as pertinent, subsection 8-42-105(3)(c) provides that temporary total disability benefits terminate when the "attending physician gives the employee a written release to return to regular employment." Under the applicable law, the attending physician's opinion of the claimant's ability to perform her regular employment is dispositive. Burns v. Robinson Dairy, Inc., ___ P.2d ___ (Colo.App. No. 95CA0131, June 15, 1995) . Further, we have concluded that § 8-42-105(3)(c) reflects the General Assembly's view that, once the attending physician finds the claimant to be physically capable of performing all the functions of her pre-injury employment, any subsequent wage loss is the result of the claimant's own actions or general economic circumstances and not the industrial injury. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995) (workers' compensation laws are not designed to protect against diminishment of a workers' earning capacity due to mass layoffs or other external fluctuations in economic conditions); Plotner v. Westran, Inc., W.C. No. 3-108-724, March 9, 1995; Bernal v. National Hispana Leadership Institute, W.C. No. 4-159-801, July 8, 1994. In other words, when the claimant is determined to be physically capable of performing her regular employment, the claimant is no longer "disabled" and thus, any subsequent wage loss cannot be "the result of" the industrial injury as required by § 8-42-103(1).
Furthermore, where the claimant is "at fault" for the loss of the employment in which the injury occurred, the termination may constitute an "intervening event" which severs the causal connection between the claimant's industrial injury and the claimant's subsequent wage loss. Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev'd on other grounds, 783 P.2d 273 (Colo. 1989). However, an employment termination for "fault" is not an "intervening event" unless the claimant has first established a prima facie case of "disability" from the industrial injury. Consequently, where the claimant is not "disabled" at the time of the termination, the claimant's "fault" is immaterial to the claimant's entitlement to temporary disability benefits.
Here, the ALJ found and the parties agree that, as of April 26, 1993, the claimant was released to perform her regular employment duties. Further, there is no dispute that the claimant was not medically restricted from performing her regular employment until September 23, 1993, when Dr. Labosky restricted the claimant from lifting over two pounds and repetitive use of the right upper extremity.
These facts compel a conclusion that the claimant was not "disabled" at the time of the termination, or up to September 23, 1993. Therefore, the ALJ did not err in failing to award temporary total disability benefits for this period.
II.
However, the ALJ's findings compel the opposite conclusion with regard to the claim for temporary total disability benefits subsequent to September 23. A claimant determined to be "at fault" in the loss of the employment in which the injury occurred, is not precluded from receiving further temporary disability benefits if the claimant reestablishes a causal relationship between the industrial injury and the post-termination wage loss. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). In PDM Molding Inc. v. Stanberg, supra, the Supreme Court held that the causal connection is reestablished if the work-related injury "contributes to some degree" to the claimant's post-termination wage loss.
Here, the ALJ found that the medical restrictions imposed by Dr. Labosky on September 23, 1993, limited the claimant to "modified work" positions at Schlage. Because, the claimant was not subject to medical restrictions at the time of the employment termination, the ALJ's finding inherently reflects a determination that the claimant suffered a worsening of her condition subsequent to the termination, and that the worsening "disabled" the claimant from performing her regular employment. Schlage's assertion that "modified employment" would have been offered to the claimant had she not been terminated for cause, is, in effect, a concession that the claimant's physical condition worsened to the point that the claimant could no longer perform her regular employment, and thus, was "disabled."
In view of the fact that the worsening of the claimant's condition occurred subsequent to the employment termination, the termination did not "intervene" between the claimant's disability from the industrial injury and the wage loss. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (retirement is not intervening event if claimant is totally disabled after retirement). Consequently, the claimant's "fault" in the loss of her employment at Schlage is immaterial to the claimant's entitlement to temporary disability benefits subsequent to September 23, 1993. Rather, because the claimant reestablished a "disability" caused by the industrial injury, the claimant is entitled to temporary total disability benefits commencing September 23, 1993, unless terminated in accordance with § 8-42-105(3)(a)-(d). PDM Molding, Inc. v. Stanberg, supra; Burns v. Robinson Dairy, Inc., supra.
Under subsection 8-42-105(3)(d), temporary total disability benefits terminate when "the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment." An offer of modified employment must be made in writing and communicated to the claimant. PDM Molding Inc. Stanberg, supra. Consequently, the availability of modified employment which is not offered to the claimant in writing, is insufficient as a matter of law, to trigger the termination of benefits under § 8-42-105(3)(d).
In this case, the ALJ found that the respondents would have offered the claimant modified employment had the claimant not been terminated for cause. However, the ALJ did not find, and the respondents do not assert that the claimant was offered modified employment after September 23, 1993. Nor does the record contain evidence of a written offer of employment. (Tr. pp. 14, 46). Therefore, the claimant was entitled to temporary total disability benefits for the period September 23, 1993 to July 29, 1994.
Moreover, the claimant's failure to seek modified employment does not preclude the award. Admittedly, we have previously held that the claimant's failure to engage in a reasonable job search is a pertinent consideration in determining whether the claimant has sustained her burden to prove a prima facie case of temporary disability subsequent to an employment termination. Duncan v. Hyatt Corporation, W.C. No. 4-119-289, August 11, 1995. However, once temporary disability has been established, the grounds for terminating temporary total disability benefits are limited to the events listed in § 8-42-105(3)(a)-(d), and the claimant's failure to seek modified employment is not listed among those events. See also Schlage Lock v. Lahr, supra; Denny's Restaurant, Inc. v. Husson, 746 P.2d 63 (Colo.App. 1987). Consequently, the claimant's failure to seek employment was not determinative of her right to continuing temporary disability benefits.
III.
For the same reasons, the respondents were not entitled to terminate the claimant's benefits effective August 23, 1994. The respondents' admission of liability for temporary total disability benefits between July 29, 1994 and August 23, 1994, is an admission that during this period the claimant's wage loss was "to some degree" attributable to the industrial injury. Under these circumstances, the respondents' liability for continuing temporary total disability benefits is governed by § 8-42-105(3)(a)-(d).
Because the respondents did not offer the claimant modified employment after August 23, 1994, Dr. Labosky's release to modified employment is insufficient as a matter of law to trigger the termination of the claimant's temporary total disability benefits. Therefore, the ALJ erred in terminating the claimant's temporary disability benefits effective August 23, 1994. See Fagan v. Ferguson Electric Corporation, W.C. No. 4-172-750, June 13, 1995 , aff'd Ferguson Electric Corporation v. Industrial Claim Appeals Office, Colo. App. No. 95CA0167, July 6, 1995.
In view of our disposition it is unnecessary to address the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated January 26, 1995 is affirmed insofar as it denied the claim for temporary total disability benefits between April 26, 1993 and September 23, 1993.
IT IS FURTHER ORDERED that the ALJ's order is reversed insofar as it denied an award of temporary total disability benefits subsequent to September 23, 1993. The respondents shall pay temporary total disability from September 24, 1993 through January 12, 1995 and continuing, until further order or terminated pursuant to rule or statute.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed December 11, 1995 to the following parties:
Etta Mae Estes, 1236 Potter Dr., Apt. B, Colorado Springs, CO 80909
Jim Curico, Schlage Lock Co., 3899 Hancock Expressway, Colorado Springs, CO 80911
Cindy Ballard, Cigna Property Casualty, P.O. Box 2941, Englewood, CO 80110-0141
James M. Anderson, Esq., Joseph W. Ruppert, Esq., 25 N. Cascade, Ste. 215 Colorado Springs, CO 80903
(For the Claimant)
Sue Kurachi Reeves, Esq., 111 S. Tejon St., Ste. 720, Colorado Springs, CO 80903-2253
(For the Respondents)
BY: _______________________