Opinion
W.C. No. 4-225-745
August 31, 1995
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ), insofar as it awarded temporary total disability benefits commencing November 25, 1994, and continuing. We affirm.
The ALJ found that the claimant sustained an industrial back injury, while working as a laborer, on September 23, 1994. The respondents admitted liability for temporary total disability through October 30, 1994.
Nevertheless, on September 26, 1994, the respondent-employer discharged the claimant from employment. The basis of the separation was the claimant's refusal to cooperate with a drug test which he found to be "personally offensive."
On October 31, 1994, the claimant was released to return to regular employment by a "family nurse practitioner." However, on November 25, 1994, the claimant's authorized treating chiropractor took the claimant "off work" because the claimant's condition had worsened. The ALJ found that, as of the date of the March 15, 1995 hearing, the claimant had not been released to return to work.
Under these circumstances, the ALJ concluded that the claimant was entitled to temporary total disability benefits commencing November 25 and continuing. In so doing, the ALJ determined that the claimant was not "at fault" for his separation from employment. Further, the ALJ determined that the claimant was entitled to benefits regardless of the discharge because he got worse on November 25, 1994, and was taken off work. ( See Conclusions of Law; tr. pp. 59-60, 66).
I.
On review, the respondents contend that the ALJ erred in determining that the claimant was not "at fault" for his separation. The respondents also argue that the claimant was not entitled to temporary total disability benefits as of November 25 because they would have reemployed him, "within his restrictions," but for the discharge. We disagree with the respondents' second argument, which we consider to be dispositive of the case. Therefore, we need not consider the argument that the ALJ erred in finding that the claimant was not at fault for the separation from employment.
In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Sup.Ct. 1995), our Supreme Court held that terminations based on "fault" do not automatically bar a claimant's entitlement to subsequent temporary disability benefits. To the contrary, the court held that if the claimant establishes that the industrial injury "contributed to some degree" to the post-separation wage loss, the claimant is entitled to temporary total disability benefits.
Here, the ALJ found that the claimant's condition worsened on November 25, and he was taken off work by the treating chiropractor, Dr. Parker. The respondents' argument notwithstanding, there is no evidence that Dr. Parker established restrictions which would have allowed the claimant to return to work in a limited duty capacity. Thus, regardless of the respondent-employer's willingness to reemploy the claimant but for the separation, the claimant was not medically released to return to employment as of November 25. Therefore, his subsequent wage loss was "to some degree" caused by the effects of the industrial injury. PDM Molding, Inc. v. Stanberg, supra; Pentico v. The Denver Dumb Friends League, W.C. No. 4-190-059, August 11, 1995.
It is true that the record contains a report from the family nurse practitioner, Ms. Blevins, dated November 28, 1994, purporting to create a limited duty release. Assuming, arguendo, that a nurse practitioner's opinion concerning medical restrictions is a sufficient basis for determining whether a claimant has been released to restricted employment duties, the ALJ implicitly rejected this release, and explicitly relied on Dr. Parker's opinion concerning the claimant's inability to work. Because resolution of conflicts in the evidence is a matter for the ALJ, we find no basis for setting the order aside. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.). Consequently, we need not reach the question of whether a nurse practitioner's opinion concerning medical restrictions is a sufficient basis for granting or denying temporary disability benefits.
The respondents have also argued that the ALJ erred in denying their motion for a continuance. In this regard, the respondents wished to present testimony that the claimant was at fault for his separation from employment, and that the employer would have reemployed the claimant but for the separation. However, we need not address this argument. For the reasons set forth above, we conclude that if the ALJ had granted a continuance and received the testimony it would have made no difference in the legal outcome.
IT IS THEREFORE ORDERED that the ALJ's order, dated April 3, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
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 August 31, 1995 to the following parties:
Robert G. Lester, 11818 E. Colfax, Apt. 30, Aurora, CO 80010
Skill Staff of Colorado, Inc., 6411 E. Colfax Ave., Denver, CO 80220-1603
Skill Staff Temporary Staffing Services, % Marilyn, 1587 S. Main, Salt Lake City, UT 84155
C. Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Sean F. Soon, Esq., 3773 Cherry Creek Drive North, #575, Denver, CO 80209
(For Claimant)
By: ___________________________