Opinion
W.C. No. 4-315-788
March 23, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied temporary total disability benefits. We affirm.
The claimant was employed as a custodian for the Denver Public Schools (DPS). On July 24, 1996, the claimant notified DPS that she intended to resign her employment effective August 26, 1996.
On August 13, 1996, the claimant sustained a compensable back injury. As a result of the injury, Dr. Smith restricted the claimant to modified work. Thereafter, the claimant returned to modified work at DPS until August 23, 1996, when she left pursuant to her voluntary resignation.
The claimant later requested temporary total disability benefits for the period August 23, 1996 to May 13, 1997, when she reached maximum medical improvement (MMI). The respondents denied the request.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the temporary loss of wages. In PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 549 (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 holds that if the claimant is found to be "at fault" for the separation from employment, the separation severs the causal connection between the injury and the subsequent wage loss, and the claimant is precluded from receiving further temporary disability benefits unless the claimant reestablishes a causal connection by proving that the industrial injury contributed "to some degree" to the post-termination wage loss.
Here, there is no dispute that the claimant was "at fault" for the employment separation on August 23, 1996. See Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994). Furthermore, the parties agree that the claimant is not entitled to temporary disability benefits in the absence of proof that the industrial injury contributed "to some degree" to her wage loss after August 23, 1996.
The ALJ found that the claimant did not apply for any employment after August 23, 1996, and did not seek reemployment with the DPS. Further, the ALJ found that between August 23, 1996 and May 13, 1997, DPS would have been able to provide modified employment within the claimant's restrictions. Consequently, the ALJ determined that the claimant failed to sustain her burden to reestablish a causal connection between the industrial injury and her wage loss after August 23, 1996. Therefore, the ALJ denied the claim for temporary disability benefits.
The claimant admits that she did not seek any employment after August 23, 1996. Further, the claimant does not contest the ALJ's determination that she did not attempt to return to work for DPS. Nevertheless, the claimant contends that the record is insufficient to support the ALJ's determination that her voluntary resignation was the sole cause of her subsequent wage loss. In support, the claimant cites the testimony of a vocational rehabilitation expert, Mariam Taylor, that the claimant's physical limitations from the industrial injury impaired her ability to find employment. The claimant also relies upon the testimony of the employer's witness, Ms. Bovey, that DPS only provided modified employment for the first 4 months after an injury. Further, the claimant contends that the ALJ erroneously failed to consider evidence that she suffered a worsening of condition on November 8, 1996, which resulted in additional medical restrictions. We reject these arguments.
Regardless of evidence that the claimant was subject to additional work restrictions after November 8, 1996, she was not restricted from all employment. Because the claimant did not look for any employment, the ALJ could reasonably infer that the claimant failed to prove a causal connection between the medical restrictions and the wage loss.
Furthermore, the ALJ was not required to explicitly cite Ms. Taylor's testimony before rejecting it as unpersuasive. See Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Therefore, the fact that the ALJ's order does not address Ms. Taylor's testimony does not establish grounds which affords us a basis to grant appellate relief.
Lastly, the record is subject of conflicting inferences concerning whether DPS would have provided continuing modified employment for the claimant. Within his sole prerogative, the ALJ resolved the conflict in favor of the respondents and credited Ms. Bovey's testimony that, had the claimant not resigned, DPS would have continued to provide modified employment within her medical restrictions. (Tr. p. 73; Findings of Fact 6, 9); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony).
IT IS THEREFORE ORDERED that the ALJ's order dated August 25, 1997, 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 March 23, 1998 to the following parties:
Joan Funayama, 850 Lowell, Denver, CO 80204
Denver Public Schools, 900 Grant St., Denver, CO 80203-2907
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Sally L. MacLuckie, Esq., 3515 S. Tamarac Dr., Suite 200, Denver, CO 80237 (For the Claimant)
Timothy L. Nemechek, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: _______________________________