Opinion
W.C. No. 4-327-668
February 19, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied temporary total disability benefits commencing January 17, 1997. We set aside the order, and remand for entry of a new order.
The claimant suffered an admitted injury on January 3, 1997, which temporarily precluded him from performing his regular employment. The respondents admitted liability for temporary disability benefits until January 13, 1997. ALJ found that on January 13 the claimant accepted and began modified employment within his medical restrictions. The claimant continued to perform modified employment until January 16, 1997, when he was discharged for insubordination.
The ALJ determined that under § 8-42-105(3)(b), C.R.S. 1998, the claimant's temporary disability benefits terminated on January 13, 1997, when he returned to modified employment. Expressly relying on Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), the ALJ further determined that a claimant is not entitled to future temporary disability benefits unless he leaves the work as a result of the industrial injury. The ALJ determined that the claimant did not leave the modified employment as a result of the injury. Consequently, the ALJ denied the claim for temporary total disability benefits after January 16, 1997.
On review, the claimant contends the ALJ applied the wrong legal standard in denying the claim for further temporary disability benefits. The claimant argues that the claim is governed by the legal principles established in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), and not Laurel Manor Care Center v. Industrial Claim Appeals Office, supra. We agree, and remand the matter for the entry of a new order consistent with PDM.
To receive temporary disability benefits, a claimant must establish a causal connection between the injury and the loss of wages. Section 8-42-103(1), C.R.S. 1998. 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), C.R.S. 1995 [amended in 1996], provides for termination when the claimant "fails to begin" a written offer of modified employment.
In PDM Molding, Inc. v. Stanberg, supra, the Supreme Court held that where a claimant is in modified employment due to an industrial injury, and is "subsequently terminated from the employment during which the injury occurs, an initial determination must be made as to whether the termination was for fault." PDM Molding, Inc. v. Stanberg, 898 P.2d at 849. If the claimant is determined to be "at fault," the claimant is precluded from receiving further temporary disability benefits unless he reestablishes a causal connection between the injury and the post-termination wage loss by proof that the industrial disability contributed "to some degree" to the subsequent wage loss. Furthermore, PDM holds that if the claimant reestablishes a causal connection between the industrial injury and the wage loss, temporary disability benefits shall be paid until "one of the four statutory criteria set forth is § 8-42-105(3) is satisfied." 898 P.2d at 549.
In Laurel Manor Care Center v. Industrial Claim Appeals Office, supra, a temporarily disabled claimant returned to work, but left the same day because she believed the employer was requiring her to perform duties beyond her restrictions. The following day, the claimant returned to the job site and was presented with a written offer of employment listing duties within her medical restrictions. However, the claimant did not return to work after being presented with the offer.
The Court of Appeals concluded that the claimant failed to prove that the written offer of modified employment exceeded her restrictions. Therefore, the court held that the claimant's failure to begin the modified employment triggered the termination of temporary total disability benefits under § 8-42-105(3)(d). Under those circumstances, the court held that the PDM analysis did not apply, and that the claimant was not entitled to further temporary disability benefits regardless of whether the subsequent wage loss was "to some degree" the result of the industrial injury.
In Dickerson v. Norwest Corporation, W.C. No. 4-288-686 (December 14, 1998) and Gonzales v. Vaughn Concrete Products, Inc., W.C. No. 4-329-353 (July 15, 1998), we held that Laurel Manor is restricted to cases involving offers of employment under § 8-42-105(3)(d), and does not apply to the termination of benefits under § 8-42-105(3)(b). We concluded that where the claimant returns to modified employment and subsequently loses that employment, the claimant's entitlement to further temporary disability benefits is governed by PDM.
The following language from Dickerson is instructive.
"[T]he claimant in Laurel Manor returned to modified employment prior to the written offer of modified employment. However, the court held that the event which barred the claimant from receiving further benefits under a PDM analysis was the claimant's failure to begin the written offer of modified employment. Thus, Laurel Manor does not purport to apply to the termination of benefits under § 8-42-105(3)(b). Conversely, PDM states that it applies to the actual loss of employment out of which the injury arose."
Furthermore, we noted that:
"[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, ___ P.2d ___ (Colo.App. No. 98CA0176, August 6, 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. Accordingly, we are not persuaded that Laurel Manor is intended to apply to cases involving § 8-42-105(3)(b)."
The respondents contend that Dickerson and Gonzales were wrongly decided. We are not persuaded . Therefore, we adhere to our prior conclusion that Laurel Manor is not applicable where temporary disability benefits are terminated under § 8-42-105(3)(b).
Here, as in Dickerson and Gonzales, the claimant's temporary total disability benefits terminated when the claimant returned to modified employment, and the termination was not the result of the claimant's failure to begin a written offer of modified employment. Further the claimant continued to perform the offer of modified employment until January 16, 1997. Therefore, the ALJ erroneously relied on Laurel Manor to find that the claimant is not entitled to temporary disability benefits after the employment termination. Rather, the resolution of the claim for temporary total disability benefits requires the ALJ to apply the principles established in PDM.
Because the ALJ erroneously relied on Laurel Manor, she did not determine whether the claimant's wage loss after January 16, 1997 is "to some degree" the result of the industrial injury. Consequently, we must set aside the order and remand the matter for additional findings of fact and conclusions of law which resolve this issue.
IT IS THEREFORE ORDERED that the ALJ's order dated August 28, 1998, 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 ________________________________ Dona Halsey
Copies of this decision were mailed February 19, 1999 the following parties:
Juan P. Martinez, 2169 Sherman Avenue, #20, Monte Vista, CO 81144
Worley McCullough Inc., 2471 County Road 7 North, Monte Vista, CO 81144-9334
Curt Kirksciun, Colorado Compensation Insurance Authority (Interagency Mail)
Gordon Heuser, Esq., 625 N. Cascade, Suite 300, Colorado Springs, CO 80906 (For Claimant)
Michael Goodman, Esq., 1700 Broadway, Suite 1700, Denver, CO 80290-1701 (For Respondents)
BY: ________________