Opinion
W.C. No. 4-434-706.
August 21, 2003.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ Muramoto) which denied a claim for temporary total disability (TTD) benefits. We set the order aside and remand for entry of a new order.
This matter has been before a panel of the Industrial Claim Appeals Office on two prior occasions. The history of this case is well documented in or orders dated April 27, 2001, and December 18, 2002. That history is incorporated herein as if fully set forth.
Suffice it to say that in our last order, dated December 18, 2002, we remanded the matter to ALJ Muramoto with instructions to "reconsider the record including the claimant's new medical evidence related to the low back injury and enter a new order concerning the respondents' liability for temporary disability benefits." The basis of this order was that ALJ Muramoto, in her order of April 29, 2002, incorrectly construed the scope of the issues before her as limited to whether or not the claimant proved that he sustained an injury to the coccyx and rectal bleeding as result of the September 13, 1999, industrial injury.
On April 17, 2003, ALJ Muramoto entered the order currently under review. This order contains seven findings of fact and denies the claim for TTD benefits commencing September 15, 1999. The first two findings of fact discuss two pieces of "new evidence" which were admitted pursuant to ALJ Harr's order of December 6, 2001. However, the order contains no specific finding concerning the credibility of this evidence or the inferences, if any, to be drawn therefrom. Findings three and four discuss the reports and deposition testimony of Dr. Laub. The ALJ found Dr. Laub's opinions to be "unpersuasive." The fifth finding states that ALJ Harr "previously concluded claimant was responsible for his termination from employment." The sixth finding states that ALJ Muramoto "previously determined that claimant's coccygeal condition and rectal bleeding are not related to his industrial injury." The seventh finding states that after considering the medical record "the ALJ finds claimant was not disabled at the time of his termination." The conclusions of law discuss the effect of § 8-42-103(1)(g), C.R.S. 2002, and § 8-42-105(4), C.R.S. 2002 (collectively the termination statutes). These conclusions state, among other things, that the claimant "is not at fault if the termination is due to claimant's mental or physical inability to perform assigned duties, but poor job performance can be" the claimant's fault.
On appeal, the claimant disputes ALJ Muramoto's finding that the claimant was not "disabled" commencing September 15, 1999. In so doing, the claimant asserts that ALJ Muramoto's April 17 order "adopts" prior orders of ALJ Harr with respect to the issue of disability. The claimant then proceeds to attack the sufficiency of the evidence to support the findings of ALJ Harr. Conversely, the respondents contend that ALJ Muramoto did not incorporate any findings of ALJ Harr, except to the extent that they concern whether or not the claimant was responsible for the termination from employment. The respondents further assert that the "only evidence properly considered by the ALJ [Muramoto] upon remand were [sic] those medical records concerning Claimant's low back injury that she had not considered for her Order dated April 29, 2002 and that had not be considered by ALJ Harr in the first hearing in this claim on February 29, 2000." The respondents further contend the evidence supports the ALJ's determination that the claimant failed to prove disability.
Initially, we note that the Order of Remand dated December 18, 2002, was a general remand which authorized ALJ Muramoto to enter new findings of fact and conclusions of law, so long as the findings are not inconsistent with the ruling. Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686 (Colo.App. 1988). Indeed, the order directed ALJ Muramoto to "reconsider the record including the claimant's new medical evidence related to the low back injury and enter a new order concerning the respondents' liability for temporary disability benefits." Thus, ALJ Muramoto was required to reconsider the record in its entirety, including pertinent evidence submitted in the hearing before ALJ Harr, and determine whether or not the claimant proved injury-related disability commencing September 15. Thus, insofar as the respondent suggests that ALJ Muramoto was restricted concerning the evidence to be considered, that assertion is inconsistent with the prior orders of remand.
A claimant is entitled to TTD benefits if the injury causes disability, the claimant leaves work as a result of the injury, and the temporary disability lasts more than three regular working days. Section 8-42-103(1)(a), C.R.S. 2002. As we previously held, "disability" connotes both "medical incapacity" evidenced by loss of or restriction of bodily function, and loss of wage-earning capacity as demonstrated by the claimant's inability to resume his or her prior work. The inability to work may be total or evidenced by the claimant's inability effectively and properly to perform the regular duties of employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999).
Proof of disability is a question of fact for determination by the ALJ. There is no requirement that disability be proven by medical evidence, although such evidence is certainly relevant. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
Because proof of disability is a question of fact, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. However, we may set aside an ALJ's order if the findings of fact are insufficient to support appellate review. Section 8-43-301(8). Purely conclusory findings are insufficient to support appellate review because they fail to reveal the evidence which the ALJ found to be dispositive of the issues presented. Further, inadequate findings require the reviewing tribunal to speculate concerning the evidence which the ALJ may have chosen to credit or discredit. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969); Beech Aircraft, Inc. v. Reif, 678 P.2d 1049 (Colo.App. 1983).
Here, ALJ Muramoto's order of April 17, 2003, lacks sufficient findings of fact to demonstrate the basis of her ultimate finding that the claimant was not disabled. The only evidence explicitly discredited by ALJ Muramoto is the opinion of Dr. Laub. However, as the order implicitly recognizes, the record also contains numerous other medical records and opinions, as well as the claimant's lay testimony, all of which bear on the question of whether the claimant proved disability. The mere statement that the medical record was "considered," and the conclusion the claimant was not "disabled" does not provide a sufficient basis for us to determine what evidence the ALJ considered to be dispositive of the issue, nor to determine whether the ALJ's findings are actually supported by substantial evidence or plausible inferences drawn therefrom.
Reflective of the inadequacy of the findings is the parties' dispute concerning the extent to which ALJ Muramoto did or did not adopt findings of fact previously entered by ALJ Harr. ALJ Muramoto's April 17 order does not specifically adopt any findings of fact which ALJ Harr previously entered on the issue of disability. If, on remand, ALJ Muramoto wishes to adopt any findings of fact entered by ALJ Harr she shall specifically refer to those findings. Further, adoption should occur only after ALJ Muramoto's independent assessment of the record.
If ALJ Muramoto determines that the claimant proved disability on September 15, 1999, she shall also determine whether the claimant was "responsible" for his separation from employment within the meaning of the termination statutes. As ALJ Muramoto explicitly noted in her April 17 order, we have determined that a claimant is not "responsible" for separation if the termination is caused by the claimant's injury-related inability to perform the duties of employment. See White-Skunk v. QK, Inc., W.C. No. 4-500-149 (October 3, 2002). However, under some factual circumstances a termination based on the claimant's excessive absenteeism may be the claimant's responsibility even if some of the absences were for reasons related to the industrial injury. Wence v. Woodley's Fine Furniture Inc., W.C. No. 4-437-791 (January 30, 2001).
Thus, the question of whether the claimant was "disabled" for injury-related reasons is relevant to, although not necessarily dispositive of, the question of whether he was "responsible" for the termination from employment. Since the disability question has never been adequately resolved, neither has the question of the claimant's responsibility for the termination.
The matter shall be remanded to ALJ Muramoto to make specific findings of fact concerning whether or not the claimant was disabled by the industrial injury on September 15, 1999. Resolution of the issue shall be based on examination of the totality of the evidence contained in the record, including the evidence presented to ALJ Harr. If ALJ Muramoto determines the claimant met the threshold criterion of disability and is otherwise entitled to TTD benefits, she shall determine whether the claimant was "responsible" for the loss of employment within the meaning of the termination statutes.
IT IS THEREFORE ORDERED that ALJ Muramoto's order dated April 17, 2003, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein. The order shall be based on the existing record as set forth above, and additional evidentiary proceedings are not authorized.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
Copies of this order were mailed to the parties at the addresses shown below on August 21, 2003 by A. Hurtado.
William S. McGaffey, 3634 Hayman Court, Colorado Springs, CO 80910
Assured Transportation Delivery, Inc., P. O. Box 1944, Columbus, OH 44316-1944
Reliance National Indemnity, c/o Judy Rollins, W/C Claims Adjuster, Cambridge Integrated Services, Inc., P. O. Box 52106, Phoenix, AZ 85072-2106
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For Claimant)
Gregory Daniels, Esq., 999 18th Street, Ste. 1600, Denver CO. 80202 (For Respondents)