Opinion
W.C. No. 4-444-954
June 8, 2001
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Mattoon (ALJ) insofar the ALJ denied her claim for temporary total disability benefits. We affirm.
The claimant was hired as a traffic flagger. In March 1999, the claimant was promoted to the job of Traffic Control Supervisor which required the claimant to set out flags, drums, cones and signs at road construction sites. The ALJ found the claimant suffered a compensable low back injury on December 7, 1999. On December 9, 1999, Dr. Wills diagnosed a muscle strain and released the claimant to modified employment which precluded the claimant from lifting over 10 pounds, bending, twisting, and driving vehicles without power steering. The employer offered the claimant the job of flagger, which the ALJ found was within the claimant's medical restrictions. The claimant declined the offer and continued to perform her regular job duties except driving company vehicles which did not have power steering. However, on December 12, the claimant was demoted to the job of flagger due to a history of tardiness.
The ALJ found the claimant missed work December 13, through December 16 for reasons unrelated to the injury. On December 17 the claimant reported for work as a flagger, but left at noon due to back spasms from the injury. The claimant did not return to work after December 17, and did not call in after December 21. The ALJ found the claimant's subsequent absences from work were due to personal reasons, not the industrial injury. On January 5 the employer terminated the claimant's employment for job abandonment. Under these circumstances, the ALJ determined the claimant was "responsible " for the termination of the employment and thus, was barred by § 8-42-105(4), C.R.S. 2000 from receiving temporary total disability benefits.
On review the claimant concedes the claim is governed by § 8-42-105(4), which provides that "where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury." However, the claimant contends the statute does not apply if the claimant is terminated from employment which she is not physically able to perform. The claimant points out that on December 28, 1999, Dr. Wills imposed medical restrictions which prohibited her from standing over 30 minutes per hour, and the ALJ found the restrictions would have precluded the claimant from performing the job of flagger. Under these circumstances, the claimant contends she abandoned a job that exceeded her physical restrictions and, therefore, argues the ALJ erroneously denied the claim for temporary total disability benefits. We disagree.
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury caused a disability, that she left work as a result of the disability, that she was disabled for more than three regular work days, and that she suffered an actual wage loss. Section 8-42-103(1)(b), C.R.S. 2000; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In this context, the term "disability" refers to the claimant's inability to perform her regular employment. McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995).
Applying the rules of statutory construction, we previously concluded that § 8-42-15(4), applies to a disabled employee who is responsible for the loss of modified employment. See Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497 (March 7, 2001). Furthermore, the term "modified employment" refers to employment within the claimant's physical restrictions from the industrial injury. The questions of whether the offerred employment fall within the claimant's restrictions are questions of fact for determination by the ALJ. Cf. Rodriguez v. Noble Electrical Contracting, W.C. No. 4-254-794 (September 27, 1996); Herrera v. Thompson School District, W.C. No. 4-114-576 (May 18, 1994).
Contrary to the claimant's contention, the parties disputed whether the job of flagger was within the claimant's physical restrictions resulting from the industrial injury. The claimant's arguments notwithstanding, there is substantial evidence in the claimant's testimony and the medical records of Dr. Wills to support the ALJ's finding that the claimant was physically capable of performing the job of flagger.
Furthermore, the ALJ was not persuaded that the effects of the industrial injury precluded the claimant from standing more than 30 minutes at a time. In this regard, we note the ALJ was not required find the standing restriction imposed by Dr. Wills on December 28 was necessitated by the industrial injury. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness' testimony). This is true because the treating physician's opinion concerning the claimant's ability to perform modified employment is binding only where the issue involves the termination of temporary disability benefits. Section 8-42-105(3)(d), C.R.S. 2000; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) ; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997) ; Meagher v. City and County of Denver, W.C. No. 4-274-962 (May 21, 1998).
Under these circumstances, the ALJ implicitly determined the claimant failed to establish that she left work as a result of the injury. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ's order). This determination supports the ALJ's order denying temporary total disability benefits. Section 8-42-103(1).
IT IS THEREFORE ORDERED that the ALJ's order dated October 11, 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 June 8, 2001 to the following parties:
Kerri Larson, 1158 Kachina Dr., Colorado Springs, CO 80915
Doris Quintana Construction, Inc., 136 Via Vallecito, Manitou Springs, CO 80829-2449
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Steve Jones, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy