Opinion
W.C. No. 4-331-011
August 6, 1998
FINAL ORDER
The claimant and respondent petitioned separately for review of an order of Chief Administrative Law Judge Felter (ALJ) which granted the respondent's petition to suspend temporary disability benefits effective July 31, 1997. We affirm.
The claimant suffered compensable injuries to his shoulder and back while employed as a substitute teacher for the Cherry Creek School District. The respondent admitted liability for temporary total disability benefits commencing March 11, 1997. The respondent petitioned to suspend temporary disability benefits commencing June 7, 1997, on grounds that the claimant was released to return to regular employment and that the claimant is a seasonal employee whose work had ended by June 7.
The ALJ found that the record contained conflicting medical opinions concerning whether the claimant was released to return to his regular employment. The ALJ resolved the conflict in favor of Dr. Want's opinion that the claimant was physically incapable of performing his regular duties between April 23 and July 30, 1997. In view of his finding that the claimant was medically restricted from performing his regular work as a substitute teacher, the ALJ found it was irrelevant whether there was substitute teaching available to the claimant. However, the ALJ found that the record contained no medical evidence concerning work restrictions after July 30. Under these circumstances, the ALJ inferred that the claimant was not restricted from performing his regular employment after July 30, 1997. Therefore, the ALJ granted the respondent's petition to suspend effective July 31, 1997. However, the ALJ also reserved the issue of temporary disability benefits after July 31 for future determination.
I.
On appeal, the respondent contends the ALJ erred in refusing to terminate the claimant's temporary disability benefits effective June 7, 1997, when the claimant's seasonal employment ended. In support, the respondent cites Wagner v. Larimer County Parks Recreation, W.C. No. 3-982-274 (September 14, 1992), where we upheld an order denying temporary disability benefits to a seasonal worker during the off season because the record supported the ALJ's finding that the worker would not have worked or sought employment if he had not been injured. We reject the respondent's argument.
Once a claimant has established an entitlement to temporary total disability benefits, the benefits continue as long as none of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 1997 occur and there is a causal connection between the injury and the claimant's temporary wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Where the claimant voluntarily decides not to work, the subsequent wage loss is deemed attributable to the decision not to work as opposed to the industrial injury. Billups v. Division of Youth Services, W.C. No. 3-926-941 (January 24, 1995); Monaco v. Hewlitt Packard, W.C. No. 4-120-069 (November 10, 1993); Cook v. University of Colorado, W.C. No. 3-723-139 (December 24, 1987). Accordingly, a claimant's decision to remove himself from the labor market by limiting himself to seasonal employment may constitute an intervening event which severs the causal connection between the industrial injury and the subsequent wage loss. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985); Heitz v. Summit County, W.C. No. 3-785-225 (August 21, 1989), aff'd, Heitz v. Summit County, Colo. App. No. 89CA1493, May 24, 1990 (not selected for publication) (claimant's decision to quit modified employment to attend college severed the causal connection between injury and wage loss). However, where the decision not to work is prompted by the industrial disability, the decision does not constitute an intervening injury. See Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986); Rainwater v. APC Construction, W.C. No. 3-682-578 (March 8, 1989).
Moreover, PDM Molding, Inc. v. Stanberg, supra, holds that an intervening injury or event does not preclude the claimant from receiving temporary disability benefits in connection with the subsequent wage loss, if the wage loss is "to some degree" the result of the industrial injury. In other words, an industrial injury need not be the sole cause of the claimant's wage loss to support an award of temporary disability benefits. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Rather, a claimant is only precluded from receiving temporary disability benefits if the industrial injury "plays no part" in the wage loss. Horton v. Industrial Claim Appeals Office, supra. Consequently, under PDM a claimant who is injured during a "seasonal" job is not necessarily precluded from receiving temporary disability benefits during the off season. See City of Aurora v. Dortch, 799 P.2d 462 (Colo.App. 1990).
Here, the record supports the ALJ's finding that the claimant did not typically work as a substitute school teacher during the summer months. Insofar as the claimant's prior lack of summer work is attributable to a voluntary decision by the claimant not to work, such a decision does not constitute an intervening event because the decision was made prior to the industrial injury. Rather, the pertinent issue is whether the claimant's lack of work during the summer of 1997 is "to some degree" attributable to the industrial injury.
The respondent admitted liability for temporary total disability benefits between March 11 and June 7, 1997. It follows that the respondent concedes that the claimant was medically restricted from performing his regular employment, and that no modified employment within his restrictions was available through June 6, 1997.
Further, the ALJ further found that the claimant was medically restricted from performing his regular employment through July 30, 1997, and the respondent concedes that no modified employment was available to the claimant through July 30, 1997. Thus, the ALJ determined that it was immaterial whether regular employment as a substitute teaching was available to the claimant after June 7, 1997. As we understand the ALJ's order, this finding reflects the ALJ's determination that the claimant was physically unable to accept employment as a substitute teacher even if he wanted to work after June 7 1997, and therefore, his wage loss between June 7 and July 30 continued to be, to "some degree," the result of the industrial injury. See Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Moreover, this finding is consistent with the claimant's testimony that he applied for substitute teaching work in the summer of 1996, but did not feel he was physically capable of performing the work after the industrial injury. (Tr. pp. 24-25).
The respondent's reliance on Wagner v. Larimer County Parks Recreation, supra, is misplaced. Wagner was decided prior to PDM Molding, Inc. v. Stanberg, supra. We also note that PDM overruled Roe v. Industrial Commission, 734 P.2d 138 (Colo.App. 1986) and Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), to the extent those cases required the claimant to prove the industrial injury was the sole cause of the temporary wage loss. Horton v. Industrial Claim Appeals Office, 942 P.2d at 1210. Thus, Wagner is not consistent with the current legal standard for temporary disability benefits.
II.
The claimant contests the ALJ's suspension of temporary disability benefits effective July 31, 1997. The claimant contends the record does not support the ALJ's finding that he was released to return to regular employment as of July 31, 1997. We disagree.
Section 8-42-105(3)(a) provides that temporary total disability benefits terminate when the "attending physician gives the claimant a release to return to regular employment." Whether the attending physician has released the claimant to return to regular employment is a question of fact for resolution by the ALJ. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
The ALJ's findings may be supported by inferences from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under those circumstances, the issue on review is whether the ALJ's inference is permissible under the totality of circumstances. Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981).
Dr. Want restricted the claimant to modified employment only through July 30, 1997, and the record contain no medical reports regarding the claimant's work status after that date. In the absence of any further medical report, the ALJ could reasonably infer that Dr. Want did not restrict the claimant from performing his regular employment after July 30, 1997, and instead, released the claimant to return to his regular employment.
IT IS THEREFORE ORDERED that the ALJ's order dated September 10, 1997, 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. 1997.
Copies of this decision were mailed August 6, 1998 to the following parties:
Donald Soucie, 5031 Garrison St., #102, Wheat Ridge, CO 80033
Cherry Creek School District No. 5, 4850 S. Yosemite St., Englewood, CO 80111-1308
Joint School Dist. Workers' Comp, Occupational Healthcare Management, 700 Broadway, #1132, Denver, CO 80273
Vincent M. Balkenbush, Esq., Ptarmigan Place, West Tower, 3773 Cherry Creek No. Dr., Ste. 280, Denver, CO 80209 (For the Claimant)
Karen R. Wells, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondent)
BY: _______________________