Opinion
W.C. No. 4-538-514.
March 27, 2006.
FINAL ORDER
The claimant seeks review of an order dated October 19, 2005 of Administrative Law Judge Henk (ALJ) that denied the claimant temporary benefits, and denied a request to increase the average weekly wage. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was injured in an admitted accident on March 8, 2002. The respondents filed an admission of liability admitting for temporary total disability benefits (TTD) from April 12, 2002 through May 19, 2002 with an average weekly wage (AWW) of $753.83.
The claimant returned to work on May 20, 2002 and continued to perform his regular job, which fell within the sedentary work category, until the claimant was terminated on October 1, 2002. The ALJ entered no specific findings concerning the reason for the termination. Findings of Fact, Conclusions of Law, and Order at 1, ¶ 4. The claimant testified that he was unable to return to work without taking drugs, and without having to leave work to go to therapy. Tr. at 27. The claimant was terminated from the employer but was paid some type of disability reimbursement, until he went to work for a subsequent employer on December 9, 2002, earning substantially more money. Tr. at 28-29. The claimant testified that it was hard to say whether his injury had anything to do with whether he was hired or not at any potential employer. Tr. at 31-32.
The ALJ found the claimant was able to perform his regular job at the subsequent employer, which was within the sedentary work category. The claimant remained at this position until April 23, 2004 at which time he was laid off. The claimant did not testify as to the reason he was laid off. Tr. at 30. The ALJ made no findings of fact regarding the reason for the lay off. Findings of Fact, Conclusions of Law, and Order at 1 ¶ 6.
In May, 2004 the claimant bought a franchise, but earned no income from the venture. In November, 2004, the claimant enrolled in and attended real estate school. In January 2005, the claimant obtained a real estate license and at the time of the hearing was working as a real estate agent. The claimant's commissions were in the mid $20,000 range and over the six months preceding the hearing the claimant earned approximately $3,000 a month.
The ALJ found that the claimant has been able to perform in the sedentary to light categories since April 23, 2004, and earn income. The ALJ determined that the claimant had failed to show that his wage loss after April 23, 2004 was due to the industrial injury.
On appeal the claimant argues that the ALJ did not use the appropriate legal standard when determining whether the claimant was entitled to TTD from April 24, 2004 and ongoing. The claimant notes that the ALJ apparently used the standard of whether the claimant is able to work instead of the standard of whether the work-related injury contributed in some degree to wage loss, citing PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) in support of his argument. However, because the claimant failed to persuade the ALJ that he was temporarily disabled from his regular job, and because, in any event, PDM Molding, Inc. has been legislatively overruled, the case has no application here.
In PDM Molding the supreme court held that an employee who sustained a work-related injury and was subsequently discharged for fault from the employment was still entitled to TTD if the injury contributed "to some degree" to the loss of wages. However, the legislature subsequently enacted § 8-42-103(1)(g), C.R.S. 2005, and § 8-42-105(4), C.R.S. 2005 (collectively the termination statutes), which provide that a claimant who is responsible for a termination of regular or modified employment is not entitled to temporary disability benefits. See also Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004) (worsened condition reinstates entitlement to TTD even after a termination for cause).
However, here neither PDM Molding nor the termination statutes are applicable. Even if it is assumed that the claimant was not at fault for any of the terminations, in order to receive temporary disability benefits, he must nonetheless establish a causal connection between the industrial disability and the loss of wages. § 8-42-103(1), C.R.S. 2005. Scruggs v. United Parcel W.C. No. 4-490-474 (June 18, 2004). The ALJ specifically found that the claimant failed to show that his wage loss after April 23, 2004 was due to the industrial injury. Findings of Fact, Conclusions of Law, And Order at 2 ¶ 8. As we read the ALJ's order, she found that the claimant was able at all relevant times to perform his regular job, which fell within the sedentary category. Hence, the ALJ concluded that the claimant had not satisfied the threshold test for entitlement to TTD.
The claimant is entitled to receive TTD benefits until: (1) the claimant reaches maximum medical improvement; (2) the treating physician releases the claimant to return to regular employment; (3) the claimant actually returns to regular or modified employment; or (4) the treating physician authorizes a return to modified employment, the employer offers such employment to the claimant, but the claimant fails to begin that employment. § 8-42-105(3), C.R.S., 2005. In the present case the ALJ found that the claimant had returned to his regular employment on May 20, 2002 and continued to perform his regular job. The burden was then on the claimant to demonstrate entitlement to additional TTD, and the ALJ determined that he had failed to do so.
We must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2005; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). In our opinion the record does support a finding that the claimant failed to prove that any wage loss after April 23, 2004, was due to the injury. Thus the claimant was not entitled to TTD. It is true that the claimant testified that after he was laid off he did attempt to find work but initially without success. Tr. at 31. It is also true that the claimant testified that his work restrictions were never changed. Tr. at 32. However, the claimant did not testify as to the reason he was laid off from work on April 23, 2004 from the subsequent employer. Tr. at 30. The record from the subsequent employer introduced into evidence by the claimant merely states the dates of the claimant's employment and his salary at the time of departure. Exhibit 5. The claimant testified that it was hard to say whether his injury had anything to do with whether he was hired or not at any potential employer. Tr. at 31-32. Moreover, as the ALJ noted, the claimant has been able to perform sedentary to light employment since April 2002 and has been able to perform his regular job in sales since May 2002. Nothing in the record compels the finding that the claimant was temporarily disabled from his regular employment. To the contrary, the ALJ could and did conclude that the claimant had failed to show that any wage loss after April 23, 2004 was due to the industrial injury. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Because we conclude that the ALJ did not err in denying the claim for additional TTD it is unnecessary to address the remaining issue involving average weekly wage.
IT IS THEREFORE ORDERED that the ALJ's order dated October 19, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Richard Spielmaker, Lakewood, CO, CCD Corp., Westminster, CO, Hartford Underwriting Insurance Company, Houston, TX, Chris Forsyth, Esq., Denver, CO, (For Claimant).
Kent L. Yarbrough, Esq., Englewood, CO, (For Respondents).