Opinion
W.C. No. 4-267-334
May 21, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ). The respondents contend that the ALJ erred insofar as he awarded the claimant temporary disability benefits subsequent to September 7, 1995, the date the claimant was terminated from his employment at R B Trucking, Inc. (R B). We disagree, and therefore, affirm.
The ALJ found that the claimant sustained an occupational disease on September 4, 1995, as a result of his duties as a truck driver for R B. The ALJ determined that the injury caused right carpal tunnel syndrome and right cervical myofacial sprain, which was treated by Dr. Gilman.
Concerning temporary disability benefits, the ALJ found that the claimant's employment with R B was terminated for cause on September 7, 1995, due to a financial impropriety. However, the ALJ found that the claimant was temporarily totally disabled from September 8, 1997 through November 14, 1995, and temporarily partially disabled thereafter. The ALJ also found that the claimant has not reached maximum medical improvement.
Based upon these findings, and expressly relying upon PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ found that "to a substantial degree" the claimant's post-termination wage loss was caused by the effects of the occupational disease. Therefore, the ALJ awarded the claimant temporary total disability benefits for the period September 8, 1995 through November 14, 1995, and temporary partial disability benefits commencing November 15, 1995, the date the claimant secured alternative employment.
On appeal, the respondents contend that the ALJ's award of temporary disability benefits is not supported by the applicable law because the ALJ's findings do not reflect his consideration of whether the claimant sustained his burden to prove that "to some degree" the occupational disease caused the claimant's inability to secure employment at pre-injury wage levels as required by PDM Molding v. Stanberg, supra. We disagree.
PDM Molding, Inc., v. Stanberg, supra, stands for the proposition that a claimant who is determined to be "at fault" for the termination of the employment out of which the industrial injury occurred, may recover temporary disability benefits if the claimant establishes a causal connection between the post-termination wage loss and the industrial injury. In PDM Molding Inc. Stanberg, 885 P.2d 280 (Colo.App. 1994), the Court of Appeals concluded that the claimant's burden is sustained when the claimant proves that his "work-related disability was the cause of his inability to find work within" his restrictions. On appeal, the Supreme Court followed the reasoning in Arizona Department of Public Safety v. Industrial Commission, 176 Ariz. 318, 861 P.2d 603 (1993), and held that the burden of proof is sustained if the claimant establishes that the "work-related injury contributes to some degree to a claimant's loss of wages." PDM Molding Inc. v. Stanberg, 898 P.2d at 548.
The determination of whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. PDM Molding, Inc. v. Stanberg, 898 P.2d at 549; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Notwithstanding the respondents' arguments, the ALJ found that the claimant was temporarily totally disabled from September 8, 1995 through November 14, 1995, and this determination is supported by substantial evidence in Dr. Gilman's medical reports. See Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995), cert. denied March 4, 1996 (attending physician's opinion of the claimant's ability to perform regular or modified work is binding on the ALJ). On September 12, 1995, Dr. Gilman released the claimant from work for two weeks. On November 13, 1995, Dr. Gilman reported that the claimant was still off work and expected to release him to "light duty" after the next examination.
The ALJ also found that the claimant's medical restrictions precluded him from returning to work as a truck driver. This finding is supported by substantial evidence in Dr. Gilman's medical reports and the claimant's testimony. (Tr. pp. 18, 20). Further, the ALJ implicitly credited the claimant's testimony to find that, commencing November 15, 1992, the claimant found "light duty" employment at a rate of pay less than his pre-injury wage. (Tr. pp. 18-19).
The ALJ's finding that, to "a substantial degree," the occupational disease contributed to the claimant's temporary total wage loss between September 7, 1992 and November 14, 1992, and temporary partial wage loss thereafter, is a plausible inference from the record. Consequently, the ALJ's findings reflect his consideration of the applicable legal standard, and the respondents' further arguments to the contrary are not persuasive. Furthermore, the ALJ's findings support the award of temporary disability benefits. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated January 16, 1996, 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. (1995 Cum. Supp.).
Copies of this decision were mailed May 21, 1996 to the following parties:
Michael D. Lamb, 3328 G Road, Rt. 1, Clifton, CO 81520
R B Trucking, Inc., 506 Vista Grande Dr., Grand Junction, CO 81503-4403
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Thomas W. Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________