Opinion
W.C. No. 4-323-225.
November 29, 1999.
FINAL ORDER.
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) which awarded temporary total disability benefits commencing May 1, 1997. We affirm.
I.
Initially, we reject the respondents' contention that the ALJ's findings of fact are insufficient to permit appellate review. The ALJ's findings are sufficient if the basis for the decision is apparent from the order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). Further, the ALJ is only required to make findings based on the evidence he found persuasive and determinative of the issues. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Also, the ALJ's oral findings at the hearing may be considered to interpret the written findings. CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds, at 783 P.2d 269 (1989).
Upon review of the ALJ's Specific Findings of Fact together with the ALJ's extensive oral findings and the Summary Order dated October 14, 1998, we have no difficulty ascertaining the basis of the ALJ's order. Therefore, the ALJ's order is sufficient to permit appellate review and the matter need not be remanded for additional findings. See § 8-43-301(8), C.R.S. 1999; Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant suffered a compensable injury on September 28, 1993, which was originally diagnosed as a left shoulder injury. The injury temporarily precluded the claimant from performing his regular job duties. However, the respondents provided modified employment within the claimant's restrictions until May 1, 1997, when the claimant was discharged for cause. The ALJ found that Dr. Walden placed the claimant at maximum medical improvement (MMI) on May 2, 1996, with 45 percent permanent impairment of the upper extremity. The claim was subsequently closed pursuant to the respondents' filing of an uncontested Final Admission of Liability for permanent partial disability benefits. Thereafter, the claimant petitioned to reopen the claim on grounds of a worsened condition in his shoulder, neck, and elbow.
The ALJ found the claimant failed to prove a worsening of his shoulder injury and was unable to determine if the claimant's cervical problems are causally related to the industrial injury. Therefore, the ALJ ordered an independent medical examination (IME) under the provisions of § 8-43-502(3), C.R.S. 1999. ( See Tr. pp. 139-141). However, crediting the testimony of the claimant and Dr. Fitzgerald, the ALJ determined that the claimant's compensable condition deteriorated after MMI due to a frozen elbow. Therefore, the ALJ reopened the claim and awarded additional medical benefits.
In so doing, the ALJ rejected the respondents' argument that the causal connection between the industrial injury and the claimant's temporary disability was severed by motor vehicle accidents in 1995 and 1996. The ALJ found that the effects of those accidents were temporary and not intervening causes of the claimant's shoulder, elbow and cervical injuries. (Finding of Fact 2; Tr. p. 136).
The ALJ also determined that "Claimant's injuries clearly played a role in Claimant's inability to obtain and perform work after May 1, 1997." ( See Finding of Fact 6; Summary Order dated October 14, 1998). Therefore, the ALJ awarded temporary total disability benefits commencing May 1, 1997.
II.
Relying on Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), the respondents contend the claimant is barred from receiving temporary disability benefits. We disagree.
It is well established that an award of temporary disability benefits is dependent on proof of a causal connection between the injury and the loss of wages. Section 8-42-103(1), C.R.S. 1999. Once established, benefits continue until terminated in accordance with the provisions currently codified at § 8-42-105(3)(a)-(d), 1999 [amended in 1999]. Section 8-42-105(3)(b) provides that temporary total disability benefits terminate when the claimant "returns to regular or modified employment." Section 8-42-105(3)(d)(I) provides for termination of benefits when the claimant "fails to begin" an offer of modified employment.
In PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the Supreme Court held that a claimant's "fault" for the loss of modified employment does not preclude the claimant from receiving temporary disability benefits in connection with the subsequent wage loss, if the claimant proves that "to some degree" the wage loss is the result of the temporary disability.
In Laurel Manor Care Center v. Industrial Claim Appeals Office, supra, the court held that a temporarily disabled claimant who refuses to accept a written offer of modified employment is precluded from receiving further temporary disability benefits in the absence of proof that the offer was unreasonable. Furthermore, the court held that the PDM analysis does not apply to the termination of benefits under § 8-42-105(3)(d), regardless of whether the subsequent wage loss is "to some degree" the result of the industrial injury.
We have previously concluded that Laurel Manor is limited to the termination of temporary disability benefits under § 8-42-105(3)(d). Martinez v. Worley McCullough, Inc., W.C. No. 4-327-668 (February 19, 1999); Dickerson v. Norwest Corporation, W.C. No. 4-288-686 (December 14, 1998). We held that where the claimant returns to modified employment and is at fault for the loss of that employment, the claimant's entitlement to further temporary disability benefits is governed by the principles announced in PDM Molding, Inc. v. Stanberg, supra. We stated in Dickerson:
"[t]he Court of Appeals has repeatedly applied a PDM analysis to determine whether a temporarily disabled claimant who returns to modified employment and is not at fault for the loss of that employment is entitled to further temporary disability benefits. See Black Roofing, Inc. v. West, 967 P.2d 195 (Colo.App. 1998); Champion Auto Body v. Industrial Claim Appeals Office, 950 P.2d 671 (Colo.App. 1997). More importantly, in Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev'd, on other grounds, Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Padilla v. Digital Equipment Corp., 908 P.2d 1185 (Colo.App. 1995); Lamb v. R B Trucking, Inc., W.C. No. 4-267-334 (May 21, 1996), aff'd., R B Trucking, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 96CA1020, June 5, 1997) (not selected for publication); and Brito v. The Denver Post, W.C. No. 4-266-095, (October 29, 1996), aff'd., The Denver Post v. Industrial Claim Appeals Office, (Colo.App. No. 96CA2057, March 20, 1997) (not selected for publication), the court applied a PDM analysis to uphold awards of temporary disability benefits to claimants who returned to modified employment and were at fault for the subsequent loss of that employment."
The respondents contend that Laurel Manor applies to the termination of temporary total disability benefits under all provisions of § 8-42-105(3)(a)-(d). However, the respondents' arguments do not persuade us to depart from our previous conclusions. Moreover, insofar as there is a conflict between Laurel Manor and the Supreme Court's holding in PDM, Laurel Manor does not purport to overrule PDM. Therefore, we adhere to our conclusion that Laurel Manor is not intended to apply to the termination of temporary disability benefits under § 8-42-105(3)(b).
Expressly applying the principles in PDM, the ALJ found that the claimant proved by a preponderance of evidence that his wage loss after May 1, 1997, is causally related to the industrial injury. Therefore, the ALJ did not err in awarding temporary disability benefits commencing May 1, 1997. PDM Molding, Inc. v. Stanberg, supra.
However, the respondents contend there is insufficient evidence to support the award of temporary disability benefits because the claimant presented no evidence concerning the type of jobs he sought and the reasons he was not hired. We disagree.
The claimant testified that after he was discharged, he applied for employment at "many places from ads in the paper." (Tr. p. 33). Dr. Shaw's March 24, 1998 evaluation contains the claimant's report that he was unemployed because "nobody gives [him] a chance" to return to work. Further, there is medical evidence that the claimant's upper extremity impairment increased between 1996 and 1998. (Dr. Shaw report dated March 24, 1998). In the absence of any specific evidence that the claimant's unemployment is attributable to other factors, this limited evidence supports the ALJ's inference that the industrial injury "interfered with [the claimant's] ability to obtain outside employment, at least, to some extent." (Tr. p. 141).
III.
We also reject the respondents' contention that the ALJ erred in failing to find that the 1995 and 1996 motor vehicle accidents constitute "intervening events" which severed the causal connection between the industrial injury and the claimant's wage loss. There is substantial, albeit conflicting evidence to support the ALJ's finding that the effects of the motor vehicle accidents were temporary and did not aggravate the claimant's baseline condition from the industrial injury. Therefore, the ALJ's finding must be upheld. Section 8-43-301(8), C.R.S. 1999; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The medical records contain evidence that the claimant reinjured his left shoulder in the motor vehicle accidents. (Dr. Kendall report dated March 7, 1995). The claimant testified that the motor vehicle accidents involved low speed collisions, where he was wearing a seat belt, with no vehicle damage. (Tr. pp. 18, 38, 42). Dr. Eskestrand, who was the claimant's treating physician for the 1995 motor vehicle accident, opined that the residual effects of the accident ceased by April 12, 1995. (Dr. Eskestrand reports dated August 12, 1997; June 13, 1995), and both Dr. Shaw and Dr. Fitzgerald deferred to Dr. Eskestrand concerning the long-term effect of the motor vehicle accidents. (Tr. p. 84; Fitzgerald depo. pp. 41. 51).
Alternatively, the respondents contend that in view of the ALJ's order for a neurological IME, the ALJ prematurely determined the role of the motor vehicle accidents. We perceive no reversible error.
Even though the ALJ was unable to determine if the claimant's C3-4 problems are related to the industrial injury, he could, and did, determine from this record that the motor vehicle accidents are not a causative factor in the claimant's cervical problems. Therefore, we reject the respondents' contention that the effect of the motor vehicle accident cannot be determined until the neurological IME is completed.
The respondents' further arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated December 21, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ Kathy E. Dean
_____________________________ Bill Whitacre
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, 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. 1999.
Copies of this decision were mailed November 29, 1999 to the following parties:
Kenneth R. Harris, 4330 E. Pikes Peak Apt. 105, Colorado Springs, CO 80935.
Current Incorporated, 1005 E. Woodman Rd., Colorado Springs, CO 80920-3181.
Ms. Mari Beth Ross, Claim Manager, Deluxe Corp., P.O. Box 64235, St. Paul, MN 55164.
Ms. Karen B. Parker, The Travelers Companies, P.O. Box 173762, Denver, CO 80217-3762.
Hadyn Winston, Esq., 10 Boulder Crescent, Ste. 100, Colorado Springs, CO 80903, (For Claimant).
Lawrence D. Blackman, Esq., Twr. 3 Ste. 600, 1515 Arapahoe Ste., Denver, CO 80202, (For Respondents).
BY A. Pendroy
IN RE MOUSAABADI, W.C. No. 4-242-075 (11/09/99) IN THE MATTER OF THE CLAIM OF JILA R. MOUSAABADI, Claimant, v. KING SOOPERS, Employer, and SELF-INSURED, Insurer, Respondent. W.C. No. 4-242-075. INDUSTRIAL CLAIM APPEALS OFFICE. November 9, 1999.
ORDER OF REMAND.
The claimant seeks review of an order of Administrative Law Judge Moeller (ALJ). The claimant contends the ALJ erred in refusing to increase her average weekly wage for the purpose of calculating permanent partial disability benefits. We set aside the order and remand the matter for entry of a new order.
The ALJ found that the claimant suffered a compensable injury to her upper extremities on November 18, 1994. At that time, she earned $12.96 per hour. The claimant was restricted in the type of work she could perform, and the respondent admitted liability for temporary partial disability benefits commencing in January 1995 based on an average weekly wage of $290.84. That was the claimant's average wage for thirteen weeks prior to November 18, 1994. However, the ALJ found that the claimant had suffered an occupational disease which became disabling in January 1995, and that her wage during the thirteen weeks prior to the onset of disability had averaged $272.81.
The claimant reached maximum medical improvement (MMI) on May 1, 1998, with 18 percent whole person impairment. Wage records indicate that at the time of MMI, the claimant's hourly rate of pay had increased to $13.96, and her average weekly wage exceeded $500. However, the respondent filed a Final Admission of Liability for medical impairment benefits based on the previously-admitted average weekly wage of $290.84. The claimant objected and requested an order requiring the respondents to pay benefits calculated on her higher average weekly wage at the time of MMI. The ALJ denied that request, and this appeal followed.
Section 8-42-107(8)(d), C.R.S. 1999, provides that permanent medical impairment benefits are calculated based on the rate for temporary total disability under § 8-42-105, C.R.S. 1999. That statute provides that the temporary total disability rate is sixty-six and two-thirds percent of the injured employee's average weekly wage.
Average weekly wage is calculated under § 8-42-102, C.R.S. 1999, and is generally determined by the wage the injured worker was receiving at the time of the injury. However, the overall purpose of the statutory scheme is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Therefore, if the specified method of computing the average weekly wage will not render a fair computation of wages for "any reason," the ALJ has discretionary authority under § 8-42-102(3), C.R.S. 1999, to use an alternative method in determining a fair wage. Campbell v. IBM Corp., supra. This discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability which occur subsequent to the initial period of disability where "manifest injustice" would result if the claimant's benefits are calculated based on lower earnings at the time of the injury. Campbell v. IBM Corp., supra.
Here, in denying the claimant's request to calculate her medical impairment benefits based on her higher, more recent wage, the ALJ found:
"[I]t is not manifestly unjust to calculate the Claimant's average weekly wage, `at the time of each period of disablement.' It is not disputed that the Claimant suffered an occupational disease and that the single period of temporary partial disability started January 12, 1995. Based upon a complete review of the facts and law in this matter, it is the determination of this Court that the Claimant's average weekly wage shall be determined at the time that she experienced the onset of disability, namely January 12, 1995."
On review, the claimant contends that it is manifestly unjust to base her permanent medical impairment benefits on wages earned prior to the onset of disability where, as here, the evidence demonstrates that her earnings were significantly higher at the time of MMI. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of the basis for his decision, and therefore, we remand the matter for entry of a new order. Section 8-43-301(8), C.R.S. 1999.
We may not interfere with the ALJ's calculation of the average weekly wage unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An abuse is shown where the order is not in accordance with applicable law, or not supported by substantial evidence in the record. Coates, Reid Waldron v. Vigil, supra. However, the ALJ's findings must be sufficient to indicate the basis of the order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the findings should not be stated in a purely conclusionary form which affords no meaningful basis to review the findings. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Here, the ALJ's order does not identify any factual circumstances in support of his general conclusion that it is not manifestly unjust to calculate the claimant's permanent medical impairment benefits based on her lower wage prior to the onset of her temporary partial disability. Since the basis for this conclusion is unclear, the findings are insufficient to determine whether the ALJ's order is an abuse of discretion.
Furthermore, we are unable to ascertain the significance the ALJ may have assigned to the fact that the claimant suffered a "single period" of temporary partial disability. However, we do not believe that multiple periods of temporary disability are required before a claimant's average weekly wage may be increased for purposes of calculating permanent disability benefits.
The facts in Campbell v. IBM Corp., supra, involved a claimant who suffered an occupational disease which resulted in three periods of temporary total disability. The court concluded that the claimant's temporary disability rate should be determined based upon the claimant's average weekly wage at the time of each period of disability and not the claimant's lower earnings at the time of the original injury. We have previously concluded that Campbell is not limited to awards of temporary disability benefits.
In Winklepeck v. Elnora Bernhardt, W.C. No. 4-196-646 (October 3, 1995), we upheld an ALJ's calculation of the permanent total disability rate based on the claimant's higher earnings at the time of the first of two industrial injuries, where both injuries contributed to the claimant's permanent total disability. We reached a similar conclusion in Berkenkotter v. Public Service Company of Colorado, W.C. No. 3-644-433 (April 18, 1996), aff'd., Public Service Company of Colorado v. Industrial Claim Appeals Office (Colo.App. No. 96CA0711, March 6, 1997). In Berkenkotter, we upheld an ALJ's determination that it would be manifestly unjust to calculate the claimant's lifetime benefits for permanent total disability based on the claimant's lower earnings at the time of the injury rather than his higher earnings at the time he became permanently totally disabled. Because the issue was permanent total disability, the fact that the claimant suffered multiple periods of temporary disability was not dispositive. In fact, the evidence indicated that the claimant returned to work and remained employed until he became permanently and totally disabled.
Moreover, in Coates, Reid Waldron v. Vigil, supra, the Supreme Court held that it was appropriate to calculate a claimant's permanent total disability rate based on the claimant's higher wage at the time of an earlier industrial injury, where the claimant became permanently and totally disabled as a result of two industrial injuries, and the claimant's average weekly wage at the time of the second injury would not fully compensate the claimant for the industrial injuries.
We recognize that Coates is factually distinguishable from the circumstances presented here, because the issue in Coates was the application of former § 8-47-102(1), C.R.S. (1986 Repl. Vol. 3B) [currently codified with changes at § 8-42-104, C.R.S. 1999], pertaining to the calculation of average weekly wage for successive industrial injuries. Thus, the Supreme Court was not required to determine the application of § 8-42-102(3) to a single injury which resulted in both temporary and permanent disability.
Nevertheless, the court recognized that the general rule which requires average weekly wage for a "single disabling work-related injury" to be based on the earnings at the time of the injury, is subject to the ALJ's broad discretion under § 8-42-102(3) to employ an alternate method of computing average weekly wage where the application of the general rule results in an injustice. 856 P.2d at 855, 857. Consequently, we do not read Coates to be inconsistent with Campbell or to preclude the ALJ's exercise of discretion where the claimant suffers a "single disabling work-related injury."
Furthermore, we perceive no basis to treat medical impairment benefits differently from permanent total disability benefits. Both benefits compensate the claimant for a permanent loss of earning capacity, and both are calculated based on a percentage of the claimant's average weekly wage. See § 8-42-111(1) C.R.S. 1999; Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). In fact, it can be argued that the calculation of average weekly wage is the "earning capacity" component of the medical impairment formula in § 8-42-107(8)(d), and that the claimant's average weekly wage at the time of MMI may be the best indicator of the claimant's residual "earning capacity" from the industrial injury.
Under these circumstances it is appropriate to remand the matter to the ALJ for a new determination of the claimant's medical impairment benefits, with specific findings to support the ALJ's conclusion concerning the appropriate average weekly wage to be used. Coates, Reid Waldron v. Vigil, supra. Our remand should not be understood as requiring the ALJ to increase the claimant's average weekly wage. We merely require that the ALJ enter findings which provide a sufficient basis for reviewing the exercise of his discretion.
In view of our disposition it is premature to consider the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated March 3, 1999, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ Kathy E. Dean
_____________________________ Bill Whitacre
Copies of this decision were mailed November 9, 1999 to the following parties:
Jila R. Mousaabadi, 17316 Paoli Way, Parker, CO 80134.
King Soopers, Inc., Attn: Kristen McKeon, P.O. Box 5567 T. A., Denver, CO 80217-5567.
Dillon Companies, Inc., King Soopers/Workers' Compensation Department, P.O. Box 5567, T. A., Denver, CO 80217-5567.
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant).
Pamela Musgrave, Esq., 1410 Grant St., #C206, Denver, CO 80203 (For Respondent).
BY: A. Pendroy