Opinion
W.C. No. 3-105-057
December 1, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which awarded temporary partial disability benefits. We reverse.
The ALJ's findings of fact may be summarized as follows. In 1992, the claimant suffered a compensable injury to his left eye during his employment with the respondent-employer. As a result of the injury the claimant has total blindness in the left eye. The claimant was released to return to work on December 1, 1992, and instructed to wear safety glasses. Upon his return to work for the respondent-employer, the claimant noticed difficulty driving to and from work, and performing his job. The claimant also had a "tough time mentally getting along," and was "afraid of losing his job," even though the respondent-employer denied that the claimant's job was in jeopardy.
Based on the totality of circumstances, the ALJ determined that the claimant "acted reasonably" in voluntarily quitting his employment on July 31, 1993. Therefore, the ALJ concluded that the claimant is entitled to temporary partial disability benefits in connection with his subsequent partial wage loss from August 1, 1993 to April 14, 1994, the date of maximum medical improvement.
On review, the respondents contend, inter alia, that the pertinent issue is whether the claimant was "disabled" at the time he voluntarily quit, and not whether the voluntary termination was "reasonable." The respondents argue that the claimant was not disabled at the time of the termination. In support, the respondents rely upon Burns v. Robinson Dairy, Inc., ___ P.2d ___ (Colo.App. No. 95CA0131, June 15, 1995); McKinley v. Bronco Billy's, ___ P.2d ___ (Colo.App. No. 95CA0150, August 24, 1995), and Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995 , aff'd Ray v Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication).
For its part, the claimant concedes that Burns, McKinley and Ray represent the current state of the law concerning the claimant's entitlement to "temporary total disability" benefits under § 8-42-105(3), C.R.S. (1995 Cum. Supp.). However, the claimant contends that § 8-42-105(3), and these cases are not applicable to a claim for "temporary partial disability" benefits. Rather, the claimant contends that temporary partial disability benefits are governed by § 8-42-106 C.R.S. (1995 Cum. Supp.) which, the claimant contends, affords the ALJ "broad discretion" in awarding temporary partial disability benefits. We agree with the respondents, and conclude that the ALJ's order is contrary to the applicable law.
Section 8-42-106 provides that "in the case of temporary partial disability" the claimant shall receive "sixty-six and two-thirds percent of the difference" between the claimant's average weekly wage and the claimant's average weekly wage during the temporary partial disability up to the date of maximum medical improvement "or as otherwise determined by the director." We have previously stated that § 8-42-106 does not purport to determine when a claimant is temporarily partially "disabled," but only the method by which temporary partial disability benefits are calculated. Schemmerling v. Pioneer Centers, Inc., W.C. No. 4-124-462, July 26, 1993.
Rather, the claimant's entitlement to temporary disability benefits is dependent on proof that the claimant has suffered a "disability"as a result of an industrial injury, and that the "disability" has caused an actual wage loss. Section 8-41-103(1) C.R.S. (1995 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 548 (Colo. 1995); Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. Nos. 93CA1118, 93CA1392, June 15, 1995). The claimant sustains his burden to prove a "disability" where the industrial injury precludes the claimant from performing his regular employment duties, and as a result, the claimant suffers a loss in wages. PDM Molding Inc. v. Stanberg, supra; J.D. Lunsford v. Sawatsky, 780 P.2d 76 (Colo.App. 1989). Where the wage loss is total, the claimant is entitled to temporary total disability benefits, and where the wage loss is less than total, the claimant is entitled to temporary partial disability benefits. University Park Holiday Inn v. Brien, 868 P.2d 1164 (Colo.App. 1994).
Under subsection 8-42-105(3)(c) the attending physician's opinion that the claimant is physically capable of performing his regular employment duties requires the termination of temporary total disability benefits, and the ALJ may not ignore an attending physician's opinion unless there are conflicting opinions by the attending physicians. Burns v. Robinson Dairy, Inc., ___ P.2d ___ (Colo.App. No. 95CA0131, June 15, 1995) . We have previously concluded that § 8-42-105(3)(c) reflects the General Assembly's view that once the attending physician finds the claimant to be physically capable of performing all the functions of his pre-injury employment, any subsequent wage loss is the result of the claimant's own actions or general economic circumstances and not the industrial injury. See McKinley v. Bronco Billy's, ___ P.2d ___ (Colo.App. No. 95CA0150, August 24, 1995) (workers' compensation laws are not designed to protect against diminishment of a workers' earning capacity due to mass layoffs or other external fluctuations in economic conditions); Plotner v. Westran, Inc., W.C. No. 3-108-724, March 9, 1995; Bernal v. National Hispana Leadership Institute, W.C. No. 4-159-801, July 8, 1994. In other words, when the attending physician determines that the claimant is physically capable of performing her regular employment, the claimant is no longer "disabled" and thus, the subsequent wage loss, if any, is no longer compensable. Consequently, in Plotner and Bernal we concluded that the attending physician's release to regular employment terminates the claimant's entitlement to temporary total disability benefits regardless of whether the claimant actually returns to employment. We also note that under § 8-42-105(3)(b), the actual return to regular employment is a separate ground for the termination of temporary total disability benefits.
We recognize the language in § 8-42-106 which provides that temporary partial disability benefits shall continue until maximum medical improvement or "as otherwise determined by the director." However, because temporary total disability benefits and temporary partial disability benefits both compensate for an actual loss in wages due to a temporary "disability" we must construe § 8-42-105(3) and § 8-42-106 to be harmonious and consistent. See Mountain City Meat Co., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CE0015, January 26, 1995) cert. granted October 30, 1995 ; Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Under § 8-42-105(3)(c) the claimant's physical ability to perform his regular employment as determined by the attending physician, severs the causal connection between the industrial injury and any subsequent temporary wage loss. Therefore, it would be inconsistent to hold that the claimant's physical ability to perform his regular employment is sufficient to eliminate the claimant's "disability" for purposes of temporary total disability benefits, but not sufficient to eliminate the claimant's "disability" for purposes of awarding temporary partial disability benefits. Instead we read § 8-42-105(3)(c) as limiting the meaning of "disability" for both temporary total benefits under § 8-42-105 and temporary partial disability benefits under § 8-42-106.
Moreover, § 8-42-105(3) is part of a statutory scheme designed to limit the scope and frequency of disputes concerning the duration of temporary total disability benefits, and promote the express legislative intent of "quick and efficient delivery of disability" benefits "without the necessity of any litigation." Section 8-40-102(1), C.R.S. (1995 Cum. Supp.); Burns v. Robinson Dairy, Inc., supra; McKinley v. Bronco Billy's, supra. The claimant's construction would promote litigation concerning the duration of temporary partial disability in contravention of this legislative intent. Consequently, we decline to adopt the claimant's analysis.
Here, there is no dispute that the claimant's attending physician, Dr. Wiesner, released the claimant to return to his former occupation in December 1992, subject to the condition that the claimant wear safety glasses. There is no finding or assertion of a conflicting medical opinion, or a subsequent worsening of the claimant's condition or that Dr. Wiesner later imposed additional medical restrictions. (Tr. pp. 12, 13, 14); compare El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Rather, the record indicates that throughout the disputed period Dr. Wiesner reported that the claimant remained capable of performing is pre-injury occupation as long as he wore safety glasses.
The ALJ expressly found that all employees were required to wear safety glasses. Therefore, Dr. Wiesner's requirement that the claimant wear safety glasses does not support a finding that the claimant was restricted from performing his regular employment during the disputed period. See McKinley v. Bronco Billy's, supra.
Nevertheless, the claimant contends that he was disabled because his vision problems made it difficult to perform the 80 mile round trip driving to and from work. However, in McKinley v. Bronco Billy's, the Court of Appeals held that where driving is not part of the duties of the employment, driving restrictions due to the industrial injury did not support a finding that the claimant was physically unable to perform the duties of her regular employment.
The claimant also contends that he quit because he felt unable to safely perform his job. However, in Ray v. Martin Marietta Corp., supra, the Court of Appeals upheld our conclusion that a claimant's subjective assessment of her inability to perform her regular duties is insufficient to establish her entitlement to temporary disability benefits where the attending physician has released the claimant to regular employment.
Consequently, the evidence is insufficient as a matter of law to support the finding that the claimant was disabled from August 1, 1993 to April 14, 1994. Therefore, the ALJ erred in concluding that the claimant is entitled to temporary partial disability benefits, and the ALJ's award must be set aside.
As a result of our disposition we need not consider the respondents' remaining contentions. Moreover, because the claimant was not disabled at the time of the employment termination it is immaterial whether the claimant was "at fault" for quitting the employment. See Gibson v. Rocky Mountain Audio, W.C. No. 4-179-470, September 21, 1994 (cause of separation immaterial where claimant fails to meet threshold burden to prove disability); Dempsey v. Bishop, W.C. No. 4-171-211, June 30, 1994.
IT IS THEREFORE ORDERED that the ALJ's order dated June 16, 1995, is reversed. The claim for temporary partial disability benefits between July 31, 1993 and April 14, 1994 is denied and dismissed.
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 December 1, 1995 to the following parties:
Fred B. Morgan, 1384 Hwy 50, Delta, CO 81416
Bear Coal Company, Inc., and Pacific Basin, P.O. Box 535, Somerset, CO 81434-5035
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)
Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209
(For the Claimant)
BY: _______________________