Opinion
W.C. No. 4-607-296.
December 17, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his claim tor temporary total disability (TTD) benefits. The claimant contends the ALJ erred in denying TTD benefits after an "economic" layoff. We affirm.
The ALJ's findings of fact are not disputed. On November 24, 2003, the claimant, a collections manager, sustained compensable injuries to his left hand, left knee, and left lower leg. The claimant was examined and released to return to his regular employment without restrictions. The claimant returned to work and continued performing his regular duties until April 23, 2004, when he was laid off for "economic reasons."
On July 1, 2004, the claimant visited the authorized treating physician and requested the imposition of specific restrictions to assist the claimant in finding new employment. The physician imposed a restriction of no lifting, pushing or pulling greater than ten pounds with the left arm, and precluded repetitive activity and forceful twisting with the left hand. However, the ALJ found that these restrictions, which the physician testified were retroactive to the date the claimant was laid off, did not prevent or limit the claimant's ability to perform his regular duties as a collections manager.
The claimant requested an award of TTD benefits from the date of the lay off until July 27, 2004, when the claimant underwent surgery and the respondents voluntarily reinstatned TTD benefits. However, the ALJ concluded the claimant failed to prove that he was "disabled" during the disputed period because the claimant was not restricted from performing the duties of his regular employment. Because the claimant failed to prove disability, the ALJ held that the injury was not the cause of the wage loss.
On review the claimant contends the ALJ erred as a matter of law in denying the claim for TTD benefits. The claimant reasons that even if the restrictions imposed by the treating physician did not impair his ability to perform his pre-injury employment, they did hamper his job search after the layoff. Therefore, the claimant reasons that the post-layoff wage loss is causally related to the injury. We are not persuaded.
An award of TTD benefits is mandated by the Act if: (1) the injury or occupational disease causes disability; (2) the injured employee leaves work as a result of the injury; (3) the temporary disability is total and lasts for more than three regular working days' duration. Section 8-42-103(1)(a), C.R.S. 2004; § 8-42-105(1), C.R.S. 2004; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability" as it is used in workers' compensation connotes two distinct elements. The first element is "medical incapacity" evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by the claimant's inability "to resume his or her prior work." Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Hendricks v. Keebler Co., W.C. No. 4-373-392 (June 11, 1999). Disability may be evidenced by the complete inability to work, or by restrictions which impair the claimant's ability effectively and properly to perform his or her regular employment. Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998) ; Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
It has been held that if a temporarily disabled employee is laid off from modified employment for economic reasons, the subsequent wage loss remains causally connected to the industrial injury and the claimant is entitled to TTD benefits. This is true because a "worker who is disabled because of a job related injury is often significantly restricted from obtaining new employment." (Emphasis added). J.D. Lunsford v. Sawatsky, 780 P.2d 76, 77 (Colo.App. 1989).
However, in this case the ALJ found as a matter of fact that the claimant failed to establish any "disability" because none of the restrictions imposed by the treating physician ever impaired the claimant's ability to perform his pre-injury employment. Thus, when the claimant was laid off, he did not suffer any competitive disadvantage compared to workers performing the same job. It follows that his wage loss after the layoff was not caused by any disability associated with the industrial injury, but was purely economic. Cf. Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999); Tai Van La v. Accutronics, W.C. No. 4-265-798 (December 12, 1996).
The claimant's reliance on Ashmore v. Nu Horizon Window Systems, Inc., W.C. No. 4-593-027 (August 25, 2004), is misplaced. In that case the claimant (Ashmore) proved the effects of the industrial injury caused "disability." The order specifically states that Ashmore was restricted from lifting more than 2 pounds and, consequently, "the claimant was prohibited from performing all of his regular duties as a welder." Thus, when the employer reduced the number of overtime hours for all employees, Ashmore's consequent wage loss remained causally related to the industrial injury because he was at a competitive disadvantage when seeking alternative employment. Thus, Ashmore v. Nu Horizon Window Systems, Inc., supra, is distinguishable, and in fact the case supports the result which the ALJ here.
The claimant also cites § 8-42-105(3)(c), C.R.S. 2004, which provides that TTD benefits continue "until the attending physician gives the employee a written release to return to regular employment." According to the claimant this statute does not apply when the claimant is released "to return to his regular employment," but instead the "release must be general." Apparently, the claimant reads the statute to mean that TTD benefits may not be terminated if the claimant, although not restricted from performing the pre-injury employment, has restrictions which might prevent him from performing any hypothetical employment.
However, the claimant's interpretation is not supported by the law. In McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995), the claimant sustained an eye injury. After a brief period of disability the treating physician released the claimant to return to her regular employment, but restricted her from night driving. Despite the fact that the claimant worked at night and needed to drive to work, the court interpreted § 8-42-105(3)(c) as terminating the claimant's TTD benefits because under the "treating physician's release she was able to perform her regular employment." 903 P.2d at 1241 (Emphasis added). The court emphasized that because the claimant's regular duties of employment did not involve night driving, the restriction on night driving did not negate the applicability of subsection (3)(c). Thus, the statutory focus is on a release to perform the duties of the individual claimant's regular employment, not the ability to perform all employment. Moreover, the McKinley court's interpretation of the statute is fully consistent with the definition of "disability" discussed above.
IT IS THEREFORE ORDERED that the ALJ's order dated August 30, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Timothy Newell, Mountain View Medical Group, P.C., Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).