Opinion
W.C. No. 4-423-097
January 11, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) insofar as it awarded temporary total disability benefits commencing July 15, 1999, and continuing until terminated in accordance with law. The respondents contend the claimant was at fault for the loss of modified employment, and the ALJ failed to determine whether the subsequent wage loss was causally related to the industrial injury. We affirm.
The claimant was performing heavy work has a laborer when he sustained a work- related back injury on June 7, 1999. On June 28, 1999, the treating physician issued a report indicating the claimant was capable of performing "limited duty," so long as he did not lift, push, pull, or carry any weight in excess of 20 pounds.
On July 7, 1999, the employer made a written offer to return the claimant to work "producing heat tapes." This work, which was scheduled to begin on July 12, was described as requiring the claimant to sit in the office and do some walking. The offer was approved in writing by the treating physician.
The ALJ found the claimant returned to work on July 12 and performed the modified employment for "approximately one hour." However, because the claimant produced a sufficient number of tapes, the employer then requested the claimant to perform janitorial duties. The claimant testified this job required him to sweep, mop and lift five gallon buckets of water weighing 25 to 30 pounds. (Tr. p. 29). The janitorial duties caused an increase in the claimant's back pain, and the claimant failed to return to work after a July 15, 1999, doctor's appointment. The employer then terminated the claimant by letter dated July 19, 1999.
The ALJ analyzed the case as involving a termination of temporary disability benefits under § 8-42-105(3)(d)(I), C.R.S. 2000 (attending physician gives the employee a written release to return to modified employment, such employment is offered in writing, and the employee fails to begin such employment). The ALJ concluded that both § 8-42-105(3)(d)(I), and Rule of Procedure IX (C)(1)(d) "implicitly" contemplate that a written offer of modified employment must specify the actual duties to be performed by the claimant, or the written approval of the authorized treating physician (required by Rule IX) becomes "meaningless." Here, the ALJ found the employer "only had one hour of modified duty for Claimant to perform, and then requested that he perform duties outside of his restrictions." Under these circumstances, the ALJ concluded the claimant was "not, in reality, offered modified employment, and he was not, in reality, terminated from modified employment." Consequently, the ALJ awarded temporary total disability benefits commencing July 15, 1999, and continuing until terminated by law.
On review, the respondents argue the ALJ necessarily found the claimant was "at fault" for the loss of the modified employment because the ALJ stated the claimant acted unreasonably in failing to communicate with the employer after July 15. Consequently, the respondents argue the ALJ erroneously failed to consider whether or not the claimant's post separation wage loss was causally related to the industrial injury. See PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The respondents assert that if the ALJ had considered this issue, temporary disability benefits would have been denied because the claimant failed to search for employment, and the treating physician increased the claimant's lifting restrictions to 30 pounds on August 25, 1999. We uphold the ALJ's order, although for reasons slightly different than those stated by the ALJ. See Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997) (Panel may affirm ALJ's order when the right result is reached for the wrong reason).
Initially, we disagree with the ALJ's conclusion that this case is properly analyzed under § 8-42-105(3)(d)(I). This is not a case in which the claimant failed to begin modified employment after a written offer. To the contrary, the claimant did begin the employment. Consequently, this case involves a termination of temporary disability benefits under § 8-42-105(3)(b), C.R.S. 2000 (the employee returns to modified employment). See Vawser v. Liberty Heights, W.C. No. 4-389-893 (November 13, 2000) (termination of temporary benefits controlled by subsection (3)(b) rather than subsection (3)(d)(I) where claimant actually commenced work pursuant to a written offer of modified employment because the return to modified employment was the "first occurrence" listed in subsection 3).
It follows the respondents are correct in stating it is necessary to analyze the case under principles announced in PDM Molding Inc. v. Stanberg, supra. Compare Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998). In PDM, the court held that if a claimant is terminated for fault from post-injury employment, the claimant remains eligible for temporary disability benefits if he establishes that to some degree the work-related injury contributes to the post-separation wage loss. [This case is not governed by § 8-42-105 (4), which applies to injuries on or after July 1, 1999]. The question of whether the claimant established the requisite causal relationship between the injury and wage loss is one of fact for determination by the ALJ. Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. See Black Roofing, Inc. v. West, 967 P.2d 195 (Colo.App. 1998). Substantial evidence is that evidence which supports a reasonable belief in the existence of a fact without regard to conflicting evidence and contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
If the claimant's loss of post-injury modified employment was caused by the effects of the industrial injury itself, then the claimant necessarily establishes that the post-separation wage loss was to some degree caused by the industrial injury. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995). Here, the ALJ implicitly credited the claimant's testimony that he quit working on July 15 because the employer required him to perform duties, including the lifting of 25 to 30 pound buckets of water, in excess of the 20 pound lifting restriction established by the treating physician on June 28. (Tr. P. . 35). Thus, the ALJ's findings necessarily lead to the conclusion that the claimant's post-separation wage loss was to some degree caused by the physical limitation resulting from the industrial injury. Bestway Concrete v. Industrial Claim Appeals Office, supra.
We have considered the respondents' argument that temporary disability benefits should be terminated after July 15 because the claimant did not conduct a job search, and because the claimant's lifting restriction was allegedly increased to 30 pounds on August 25. However, the claimant is not required to conduct a job search in order to receive temporary disability benefits once he establishes the injury is the cause of his wage loss. Black Roofing, Inc. v. West, supra. Moreover, once the claimant established a causal relationship between the industrial injury and his wage loss on July 15, he was entitled to continuing temporary disability benefits until the occurrence of one of the circumstances listed in § 8-42-105(3). PDM Molding Inc. v. Stanberg, supra; Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). A mere change in the claimant's physical restrictions does not, in and of itself, establish a ground for termination of temporary benefits under § 8-42-105(3), and the respondents did not establish that the employer offered the claimant any employment based on the change in his restrictions. Thus, the respondents' arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated March 6, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 January 11, 2001 to the following parties:
Ernest Cintas, 2214 N. Greenwood, Pueblo, CO 81003
Fountain Foundry, Inc., 1815 W. 14th St., Pueblo, CO 81003-5208
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Englewood, CO 80112
John V. FitzSimons, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy