Opinion
W.C. No. 4-726-194.
August 26, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated March 12, 2009 that ordered the respondents to pay temporary partial disability (TPD) benefits from May 2, 2007, until terminated pursuant to statute. We affirm.
The claimant slipped and fell on April 21, 2007 in an admitted accident injuring her left shoulder. The ALJ awarded temporary total disability benefits from April 22, 2007 through May 1, 2007, which is not in dispute on appeal. The ALJ awarded the claimant TPD benefits from May 2, 2007. The ALJ found that following her return to work on May 2, 2007 the claimant continued to have work restrictions and these restrictions contributed to her temporary wage loss. Prior to her injury the claimant worked 4-5 days per week. After the claimant's injury she worked 1-2 days per week. Although the respondents had argued that the claimant's temporary wage loss following May 2, 2007 was caused by economic conditions unrelated to her employment the ALJ rejected this argument and awarded TPD from May 2, 2007 through the present.
On appeal the respondents contend the ALJ erred in awarding ongoing TPD from June 19, 2007 because by then the claimant was off work for economic reasons. The respondents make the following factual assertions supporting their argument. In June 2007, a fast food competitor opened in the same strip mall, which caused a dramatic drop in sales. The employer had to cut hours of multiple employees. Some employees' hours were cut entirely although the employees were informed they were not terminated and if business improved they would be put back on the schedule. The claimant was one of these employees.
The respondents in arguing that the claimant's wage loss was not injury related, but instead was economic wage loss, cite Lunsford v. Sawatsky, 780 P.2d 76 (Colo. App. 1989). In Lunsford the court upheld an award of temporary disability benefits under circumstances in which the injured worker's job was terminated because of a reduction in work force. The court held that if a claimant's post-injury wage loss is due in part to economic conditions, then an award of temporary disability benefits is proper so long as the claimant was not at fault for her loss of employment or reduced earnings, the claimant's industrial disability has caused or contributed to her reduced earnings, and the claimant has reasonably sought new employment. The respondents argue here that there is no persuasive evidence that the claimant looked for work from the time her shifts were reduced to the time she was brought back by the employer. The respondents argue that the claimant had a duty to make a reasonable effort to find work because the temporary layoff was due to economic reasons. We are not persuaded that the ALJ erred in awarding TPD benefits.
We note that the Court of Appeals later held in Schlage Lock v. Lahr 870 P.2d 615 (Colo. App. 1993) that there is no necessity for the apparent judicial mandate in Lunsford directing a temporarily disabled employee to seek new employment. Instead, the court determined that the language in Lunsford ostensibly requiring a claimant to have reasonably sought new employment constitutes dictum unnecessary to the holding in that case. In Schlage Lock v. Lahr, the court held that loss of employment because of economic circumstances is not the "fault" of the employee, and does not serve to sever the causal connection between the injury and any subsequent wage loss.
Here, there is no suggestion that the claimant was responsible for the termination of her employment. Therefore, there was no argument under the termination statutes that the claimant as a temporarily disabled employee was responsible for termination of employment and so the resulting wage loss could be attributable to the on-the-job injury. See §§ 8-42-105(4), C.R.S. 2009, and 8-42-103(1)(g), C.R.S. 2009 (referred to as the termination statutes).
The ALJ determined that following her return to work on May 2, 2007 the claimant continued to have work restrictions and was entitled to TPD benefits. The ALJ rejected the respondents' argument that the claimant's temporary wage loss following May 2, 2007 was caused by economic conditions unrelated to her employment. Thus, a causal link between the industrial injury and the subsequent wage loss was maintained and TPD benefits were properly awarded. We are not persuaded that the claimant's right to temporary disability benefits is dependent upon her efforts to seek employment within her restrictions. See Denny's Restaurant, Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987).
The respondents also contend that the ALJ erred in awarding TPD benefits because the claimant did not treat with her authorized treating physician during the period of time that the ALJ award benefits. The respondents have cited no authority for this proposition nor are we aware of any.
Section 8-42-106 (2), C.R.S. 2009 provides that TPD benefits shall continue until the employee reaches maximum medical improvement, or the attending physician gives the employee a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment. The respondents have not argued that either of the elements necessary to discontinue TPD benefits was present in this case. Therefore, we are not persuaded that the ALJ erred in awarding ongoing TPD benefits. See Champion Auto Body v. Industrial Claim Appeals Office of State of Colo. 950 P.2d 671 (Colo. App. 1997) (the payment of TPD benefits is mandatory under the statute until one of the statutory conditions for terminating such benefits is met).
IT IS THEREFORE ORDERED that the ALJ's order dated March 12, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John Baird
______________________________ Thomas Schrant
MARY GAITAN, GREELEY, CO, (Claimant).
PITA SUBWAY, Attn: BECKY WOODWARD, EATON, CO, (Employer).
FARMER'S INSURANCE EXCHANGE, Attn: LISA WATKINS, DENVER, CO, (Insurer).
KONCILJA KONCILJA, PC, Attn: ROBERT D. BAUMBERGER, ESQ., PUEBLO, CO, (For Claimant).
VARNELL ASSOCIATES, Attn: JOE ESPINOZA, ESQ., DENVER, CO, (For Respondents).