Opinion
W.C. No. 4-373-097
September 16, 1999.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Jones (ALJ) which determined the claimant sustained a compensable injury and awarded temporary total and temporary partial disability benefits. The respondent contends the evidence does not support the ALJ's finding that the claimant was injured at work. Further, the respondent argues the claimant is not entitled to temporary disability benefits because she was at fault for loss of her job with the respondent, her right to temporary disability benefits was terminated under § 8-42-105(3)(b), C.R.S. 1999, and because she is capable of full-time work. We affirm.
The claimant was employed as a "porter" at the respondent's hotel. The claimant was responsible for cleaning bathrooms, and was required to mop underneath bathrooms stalls. The claimant worked the graveyard shift from 11:00 p.m. to 6:45 a.m. Her average weekly wage was $324.
The ALJ credited the claimant's testimony that she sustained an injury to her neck and right shoulder while mopping on March 9, 1998. Subsequent to the injury the claimant experienced pain affecting her right arm and the first three fingers of her right hand. The claimant was examined and treated for a cervical strain, and on March 17, 1998, she was released to return to work with restrictions. The ALJ determined that these restrictions precluded the claimant from returning to her regular employment as a porter.
On March 10, 1998, the same day the claimant reported her injury to the respondent, the respondent learned the claimant tested positive for marijuana on a pre-employment drug test. Consequently, the respondent terminated the claimant's employment in accordance with its drug screening policy.
Following the termination the claimant was unemployed until she obtained full-time work as a security guard in June 1998. This job paid wages in excess of the claimant's average weekly wage and was within her restrictions. However, it lasted only two days because the claimant quit over a "disagreement with management."
On July 1, 1998, the claimant obtained employment supervising housekeepers at a hotel. This job was within the claimant's restrictions and she earned $288 per week based on 32 hours of work. The employer did not offer the claimant a full 40 hour week.
The ALJ determined the claimant sustained compensable neck and shoulder injuries on March 9, 1998, but was "terminated for cause" based on the positive drug test. Nevertheless, relying on PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ found that the claimant's subsequent wage loss was to some degree caused by the work-related injury. Accordingly, the ALJ awarded temporary total disability benefits commencing March 10, 1998.
The ALJ further determined the claimant was not entitled to temporary disability benefits during the 2 days she was employed as a security guard. However, the ALJ concluded the claimant's separation from the job as a security guard did not vitiate her entitlement to temporary partial disability benefits commencing July 1, 1998, when she began work as a housekeeping supervisor. The ALJ found that, although the claimant left the security guard job of her "own volition," the subsequent wage loss was to some degree the result of the injury.
I.
The respondent first contends the evidence does not support the ALJ's finding that the claimant sustained a compensable injury. The respondent argues the claimant's testimony was incredible as a matter of law because it was internally inconsistent, contradicted by documentary evidence and the testimony of the claimant's supervisor, and unsupported by the medical evidence. We find no error.
The question of whether the claimant proved a compensable injury causally connected to her employment was one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the issue is factual in nature we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999.
Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The ALJ's decision to credit the testimony of a witness is binding unless the testimony was rebutted by such hard, certain evidence that it may be declared incredible as a matter of law. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). To the extent the testimony of a witness contains internal inconsistencies the ALJ may resolve them by crediting part or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Evidence not expressly credited is considered to have been implicitly rejected. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999). Finally, there is no requirement that the claimant present expert medical testimony in order to establish causation. To the extent such evidence was presented its weight and credibility were matters for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant testified she experienced the immediate onset of pain in her neck and right shoulder while mopping the floor. She stated the pain seemed to subside but resurfaced after she completed her shift and went home. (Tr. pp. 39, 110). Although the claimant filled out a report on March 10 which mistakenly indicated the date of injury as March 8, and that she injured her left shoulder, these facts do not render her testimony incredible is a matter of law. The ALJ could logically infer the claimant's mistake concerning the date of injury was because her shift commenced on March 8 and ended on March 9. Further, the claimant's indication that the injury was to the left shoulder was corrected before the claimant completed and submitted the report. Thus, the mistake could be attributed to inadvertence rather than deliberate deception. The fact that other witnesses contradicted the claimant's testimony does not afford a basis for relief because the relative weight of the testimony was a matter for the ALJ. Similarly, the ALJ was free to resolve the alleged inconsistencies in the claimant's testimony.
Neither do we agree with the respondent's assertion that there is no medical evidence to support the claim. Although medical evidence was not necessary to prove the claim, the record contains the report of Dr. Kesten stating that the claimant's "clinical presentation and history appear most consistent with cervical, thoracic, and right upper extremity strain, as well as associated sleep disturbance." We decline the respondent's invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from this medical evidence.
Insofar as the respondent makes other arguments they are purely factual in nature and we find them to be without merit.
II.
The respondent next contends the ALJ erred in awarding temporary total disability benefits because the claimant was at fault for her separation based on the positive drug test. The respondent argues there is no credible evidence the claimant's wage loss subsequent to the discharge was related to the injury. Further, the respondent argues the claimant's failure to conduct a job search following the termination required the ALJ to find that the subsequent wage loss was attributable to the claimant's conduct rather than the industrial injury. We disagree.
Under former § 8-42-105(3), C.R.S. 1998, which is applicable to this claim, a temporarily disabled claimant who is separated for fault from post-injury employment is not barred from receiving temporary disability benefits. To the contrary, if the claimant establishes the post-separation wage loss was to "some degree" the result of the industrial injury the claimant is entitled to benefits. PDM Molding, Inc. v. Stanberg, supra. Under this test the claimant is not required to prove the work-related injury was the sole cause of the wage loss, only that the injury contributed. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Further, there is no requirement for the claimant to conduct a job search in order to establish that the post-separation wage loss was to some degree caused by the injury. Rather, the presence or absence of a job search is only one factor which the ALJ may evaluate. Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998).
The respondent's argument notwithstanding, there is substantial evidence in the record to support the ALJ's finding that the claimant's wage loss after being terminated by the respondent was to some degree the result of the injury. As the ALJ found, the claimant was placed on restrictions which preclude her from performing duties as a porter. Therefore, the ALJ could logically infer that the claimant's prospects for obtaining employment at pre-injury wage levels were substantially diminished. This conclusion is corroborated by a report of the claimant's vocational expert who opined the claimant temporarily lost access to 46.2 percent of the jobs to which she had access before the injury. Under these circumstances, the ALJ was not obliged to conclude that the claimant's failure to conduct a job search required a denial of benefits.
In light of this disposition we need not consider the claimant's assertion that she was not at fault for loss of the employment based on the drug test.
III.
The respondent next contends the claimant is not entitled to temporary partial disability benefits subsequent to quitting her employment as a security guard. The respondent asserts that § 8-42-105(3)(b) mandates termination of temporary disability benefits when the claimant returns to modified employment. In any event, the respondent cites Monfort v. Husson, 725 P.2d 67 (Colo.App. 1986), for the proposition that the claimant's decision to quit over a "disagreement" with her employer establishes that any subsequent wage loss was the result of the claimant's own action, not the effects of the industrial injury. We disagree with these arguments.
Section 8-42-105(3)(b) provides temporary total disability benefits shall continue until the claimant "returns to regular or modified employment." However, in light of PDM Molding, Inc. v. Stanberg, supra, we previously held the mere fact the claimant returns to modified employment within her restrictions does not permanently preclude an award of temporary disability benefits. Rather, we understand PDM to stand for the proposition that a claimant who is separated from post-injury modified employment is entitled to reestablish the causal connection between the injury and the wage loss if the wage loss is to "some degree" caused by the injury. Dickerson v. Norwest Corp., W.C. No. 4-288-686 (December 14, 1998); Medina v. Cobe Laboratories, W.C. No. 4-161-616, (March 5, 1996).
The Court of Appeals reached the same conclusion in Bestway Concrete v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 98CA1243, July 8, 1999). In Bestway, one of the claimant's authorized physicians released him to return to work with no restrictions. The claimant returned to work but was terminated for an alleged safety violation. Subsequently, another authorized physician disputed the claimant's ability to work. The respondents argued the claimant's right to receive temporary total disability benefits terminated under § 8-42-105(3)(b) because he temporarily returned to work. However, the court applied the PDM analysis and concluded the claimant was not disqualified from receiving benefits. The court read the ALJ's findings to mean the claimant was not at fault for the separation and, in any event, the injury contributed to the claimant's post-termination wage loss.
Therefore, we reject the respondent's contention that the claimant's return to work as a security guard automatically barred her from receiving further temporary disability benefits. Rather, the ALJ was entitled to determine whether the claimant was at fault for her separation from the employment and, if so, whether the subsequent wage loss was to some degree the result of the injury.
The ALJ was certainly not required to find the claimant's post-separation wage loss was solely caused by her decision to quit the job as a security guard. As we have pointed out, the claimant remained under continuing restrictions which the evidence indicates limited her access to the labor market. Further, the claimant conducted a post-separation job search and obtained employment which did not produce an average weekly wage equal to that which she earned at the time of the injury. While the evidence might have supported a contrary conclusion, we may not interfere with the ALJ's resolution of this factual issue.
Monfort v. Husson, supra, is not authority to the contrary. The Monfort decision was expressly overruled by PDM to the extent Monfort held that separation for cause from post-injury employment mandates an automatic disqualification from receiving temporary disability benefits. Horton v. Industrial Claim Appeals Office, supra. We have also held there is no meaningful distinction, for purposes of applying the PDM analysis, between cases involving a claimant's discharge for cause and cases were the claimant voluntarily quits. See Medina v. Cobe Laboratories, supra. This is true because both types of cases involve volitional conduct by the claimant which the claimant knows or should know will lead to separation from employment and a consequent loss of wages. In light of this disposition we do not consider the claimant's arguments that the respondent waived consideration of subsection (3)(b), and that she was not at fault for her separation from the security guard job.
IV.
Finally, the respondent contends the claimant is not entitled to temporary partial disability benefits because she testified she could work up to 40 hours per week as a housekeeping supervisor. We reject this argument.
Section 8-42-106(1), C.R.S. 1999, provides that temporary partial disability benefits shall be paid at "sixty-six and two-thirds percent of the difference between said employee's average weekly wage at the time of the injury and said employee's average weekly wage during the continuance of the temporary partial disability." Here, the claimant was sustaining a wage loss relative to her average weekly wage at the time of the injury while working as a supervisor. Thus, she was entitled to temporary partial disability benefits under the statute.
The claimant's hypothetical ability to earn greater wages if she were offered additional hours does not negate her right to temporary partial disability benefits. Once the claimant established the necessary causal relationship between the industrial injury and her wage loss, she was entitled to benefits based on her actual loss of wages, not by her willingness to seek other employment which might provide greater earnings. Black Roofing Inc. v. West, supra; Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated February 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 16, 1999 to the following parties:
Diane Trudell, P.O. Box 706, Central City, CO 80427
Harvey's Wagon Wheel Hotel Casino, attn. Daun Goss, 12364 W. Alameda Ave., #145Q, Lakewood, CO 80228
Joyce Cocking, Claims Examiner, Gates McDonald Gibbens, P.O. Box 71255, Reno, NV 89570
Jeff Francis, Esq., 940 Wadsworth Blvd., #400, Lakewood, CO 80215 (For Claimant)
Richard Bovarnick, Esq., Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondent)
By: A. Pendroy