Opinion
W.C. No. 4-507-030
April 9, 2003
FINAL ORDER
The claimant and respondent petition separately for review of an order of Administrative Law Judge Martinez (ALJ) which increased the average weekly wage (AWW) and denied temporary partial disability benefits. We affirm.
For approximately 16 years, the claimant had a history of working as a ski instructor between November and April and was a self-employed trim carpenter from June through early December. The claimant earned approximately $10,000 a year as a ski instructor and approximately $42,000 a year as a carpenter.
On March 10, 2001, the claimant suffered injuries to his right knee, finger, left shoulder, thoracic spine and lumbar spine while working as a ski instructor. The respondent admitted liability for temporary total disability benefits beginning March 26, 2001 and continuing through June 14, 2001, based on the claimant's AWW as a ski instructor. The claimant returned to modified employment with the respondent-employer on June 15, 2001. However, because he believed the modified employment exceeded his medical restrictions he did not return to work after June 20 and resigned on June 27. The claimant did not return to work as a carpenter until approximately July 15.
The ALJ found the industrial injury significantly impacted the claimant's ability to earn wages as a trim carpenter. Under these circumstances, the ALJ determined that exclusion of the claimant's earnings as a carpenter would not accurately reflect his earning loss from the industrial injury. Consequently, the ALJ increased the AWW to include the claimant's average earnings as a trim carpenter.
The ALJ also found the modified employment provided by the respondent fell within the medical restrictions imposed by Dr. Raub. Therefore, the ALJ determined the claimant is not entitled to temporary partial disability benefits after June 20, 2001.
I.
On appeal, the respondent contends the ALJ abused his discretion by including the claimant's "concurrent" wages in the AWW, because the claimant was not actually employed as a carpenter at the time of the injury. We perceive no reversible error.
AWW is to be based upon the claimant's wage at the time of the injury. Section 8-40-201(19)(a), C.R.S. 2002; Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). The objective is "to arrive at a fair approximation of the claimant's wage loss and diminished earning capacity" from the industrial injury. Campbell v. IBM Corp., supra.
Subsection 8-42-102(3), C.R.S. 2002, provides that where the methods prescribed in subsections 8-42-102(2)(a)-(f) will not allow the average weekly wage to be "fairly computed," the ALJ has the discretion to calculate the average weekly wage "by such other method as will" in the opinion of the ALJ "fairly" determine the claimant's wage loss. In St. Mary's Church Mission v. Industrial Commission, 735 P.2d 902 (Colo.App. 1986), the court held that § 8-42-102(3) authorizes ALJs to include earnings from concurrent employment where the industrial injury impairs the claimant's ability to earn wages from concurrent employment. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
Because the authority granted by § 8-42-102(3) is discretionary, we may not interfere with an ALJ's determination of the AWW unless an abuse is shown. An abuse of discretion exists where the ALJ's order is beyond the bounds of reason, as where it is not supported by the evidence or is contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Here it is undisputed the claimant did not normally work as a carpenter in March, April or May. However, is undisputed he had the physical ability to earn wages as a carpenter before the industrial injury. Further, the claimant testified that he did not work as a trim carpenter in June 2001 or the first two weeks in July due to pain from the industrial injury. (Tr. pp. 24, 32). He added that his earnings as a trim carpenter were less in 2001 than 2000 due to restrictions from the industrial injury. (Tr. p. 18). Under these circumstances, we cannot say the ALJ exceeded the bounds of reason in finding that the claimant's lost earning capacity is not fairly measured without including his earnings as a carpenter. Cf. Pizza Hut v. Industrial Claim Appeals Office, supra, (lack of concurrent employment at time of injury doesn't preclude award of permanent disability benefits based on subsequent, higher wage, it is merely a circumstance to be considered by the ALJ in determining AWW).
Therefore, we may not disturb the ALJ's determination of AWW.
II.
The claimant contends the ALJ erroneously denied temporary partial disability benefits commencing June 20, 2001. We disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Once the claimant has established his entitlement to temporary disability benefits, the benefits must continue until the occurrence of one of the events listed in § 8-42-103(a)-(d), C.R.S. 2002. However, § 8-42-105(4) provides that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury. A claimant is "responsible" if the claimant acted volitionally or exercised some control over the employment termination in light of the totality of the circumstances. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
We have previously held that a claimant is not "responsible" for a termination of employment if the claimant is not physically capable of performing the offered employment. See Lovato v. Cathedral of the Sacred Heart, W.C. No. 4-463-726 (May 13, 2002). The question of whether the modified employment exceeds the claimant's physical limitations is one of fact for the ALJ. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Under this standard we must view the evidence in the light more favorable to the prevailing party and the existence of contrary evidence does not compel appellate relief. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951)
In a Physician's Supplemental Report dated April 23, 2001, Dr. Raub released the claimant to return to modified employment which did not require walking or standing more than 40 minutes per hour, repetitive motions of the shoulder, overhead lifting, and lifting, pushing or pulling more than 1 pound. The Report also contains a check mark next to the medical restriction "sitting not to exceed 10 minutes without a 5 minute break to ambulate."
The claimant testified the respondent offered full-time clerical employment. The claimant stated it was a "sit/stand" job and the respondent allowed him to "do it any way I wanted." He added that he made attempts to change positions "every chance" he could. (Tr. pp. 28, 39). The claimant commenced the modified employment on June 15. However, on June 20, the claimant complained that his back was too painful to work full-time. (Tr. p. 24). As a result, the employer instructed the claimant to have Dr. Raub reevaluate his medical restrictions.
Dr. Raub's clinic note dated June 22, 2001, states that he "changed" the claimant's work restrictions:
"to relieve him from a prolonged sitting job. He can sit for 5 minutes and then he needs to get up frequently, although I did observe him sitting for at least about 5 minutes in the office without requiring to get up."
The Physician's Supplemental Report prepared by Dr. Raub on June 22 contains a check mark next to a work-restriction of "sit-down job" and "No sit down job" is handwritten next to the restriction. There is also a check mark next to the restriction "sitting not to exceed 5-10 minutes without a 5 minute break to ambulate."
The claimant considered Dr. Raub's June 22 report a change in medical restrictions. Consequently, when the employer did not offer the claimant a different assignment the claimant resigned.
In view of the claimant's testimony that the employer allowed him to perform the modified employment either sitting or standing, the ALJ could, and did, reasonably infer that the 5 minute sitting restriction imposed by Dr. Raub on June 22 did not preclude the claimant from performing the duties required of the clerical job offered by the respondent. Further, Dr. Raub did not restrict the claimant from working 8 hours per day. Under these circumstances, the record supports the ALJ's finding that the modified work did not exceed the claimant's physical restrictions and, thus, the claimant exercised control over the circumstances which caused the employment termination.
Nevertheless, the claimant contends that even if he was responsible for the loss of modified employment, he suffered a partial wage loss because the modified employment paid $710.40 per week and the ALJ determined the AWW to be $1003.43. Again we disagree.
In a series of cases beginning with Anderson v. Longmont Toyota Inc., W.C. No. 4-465-839 (February 13, 2002) , we concluded that the phrase "resulting wage loss," as used in § 8-42-105(4), refers to the wage loss which is the consequence of the claimant's volitional conduct that caused the termination of employment. We reasoned that because the statute does not define the term "resulting," the term is governed by its commonly accepted dictionary definition, which is the "consequence or outcome of an action." Webster's II New College Dictionary (1995); White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000). Further, we reasoned that if the General Assembly intended to create a permanent bar to temporary disability benefits, the legislature would have enacted language which stated that if the claimant is responsible for termination of employment no subsequent wage loss shall be attributable to the on-the-job injury.
In Anderson v. Longmont Toyota Inc., supra, the claimant's condition worsened after the claimant was discharged from modified employment. The claimant was responsible for the discharge. However, the modified employment exceeded the medical restrictions imposed for the worsened condition, and no modified employment within the claimant's new restrictions was offered. Under these circumstances, we concluded the claimant's wage loss following the worsening of his condition was not a consequence of the earlier volitional conduct which caused the loss of the modified employment because, in the absence of the volitional conduct the claimant would still have suffered a total wage loss when the worsened condition precluded him from being physically able to perform the modified work that was offered. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (claimant's voluntary retirement did not preclude a subsequent award of temporary total disability benefits where the claimant's condition subsequently worsened).
However, in Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court rejected our reasoning. The court held that in the context of § 8-42-105(4), the term "resulting" is ambiguous because the term may encompass both direct and indirect consequences of the termination. Slip op. p. 4. Nevertheless, the court concluded that the legislative intent of § 8-42-105(4) is to "completely cut off temporary benefits whenever an injured worker is responsible for the separation from the employment." The court added that there was nothing in the legislative history to suggest the General Assembly intended to "limit the bar against" temporary disability benefits in § 8-42-105(4). Slip op. 6-7. Consequently, the court held that the term "resulting" means "any wage loss following a termination" for which the claimant is responsible, and that the statute is a "permanent bar" to the receipt of temporary disability benefits. Slip op. p. 7. The only exceptions mentioned by the court occur when the claimant's disability is the result of a "work-related aggravation of the old injury or a new injury." Slip op. 7.
This claim is factually distinguishable from the circumstances in Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra. Rather, this case is akin to Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301(September 27, 2001), where the claimant was found to be "responsible" for loss of modified employment which paid less than his pre-injury wage. See also Minter v. Diesel Services of Northern Colorado, W.C. No. 4-513-118 (January 21, 2003). Under these circumstances, we concluded that the "resulting" wage loss was the amount paid to the claimant in the modified employment. In contrast, we reasoned the difference between the pre-injury wage and the modified employment rate of pay was a consequence of the industrial disability. Therefore, we held that the termination of employment did not preclude the claimant from receiving the temporary partial disability benefits he would have been entitled to receive if he retained the modified employment.
However, we and the ALJ are bound by published decisions of the court until modified or reversed. C.A.R. 35(f). Further, the facts presented here do not fall into one of the exceptions discussed by the court in Longmont Toyota. Therefore, in view of the court's conclusion that § 8-42-105(4) is a "permanent" and "complete" bar to the receipt of temporary disability benefits for "any wage loss" following a termination for which the claimant is responsible, we have previously concluded that it is proper to deny temporary partial disability benefits where the claimant is responsible for the termination of modified employment within her restrictions. Homman v. Richard Alan Singer, W.C. No. 4-523-831 (March 12, 2003). We adhere to our prior conclusions.
Here, the ALJ's finding that the claimant was responsible for the employment termination supports the conclusion the claim for temporary partial disability benefits is barred. Therefore, the ALJ did not err in denying temporary partial disability benefits after June 20, 2003.
IT IS THEREFORE ORDERED that the ALJ's order dated August 2, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 9, 2003 to the following parties:
Arthur Baker, P. O. Box 7860, Avon, CO 81620
Bobbi Mallett, Vail Associates, Inc., Box 7, Vail, CO 81658
Wendy Garcia, G. E. Young Co., 4251 Kipling St., #510, Wheat Ridge, CO 80033
Jeffrey S. Auxier, Esq., P. O. Box 987, Salida, CO 81201 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Hurtado