Opinion
W.C. No. 4-218-547
February 7, 1996
ORDER OF REMAND
The claimant seeks review of that part of an order of Administrative Law Judge Gandy (ALJ) which denied her claim for temporary disability benefits. We set aside the contested portion of the order and remand for entry of a new order.
The claimant sustained an admitted occupational disease, and returned to "light duty" work for the respondent-employer until December 31, 1993, when the claimant elected to accept a voluntary retirement package. On April 28, 1994, the treating physician, Dr. Bronstein, determined the claimant to be at maximum medical improvement.
The ALJ found that the "claimant's election to retire rather than electing to continue to work on the light duty job provided to her within the limitations as outlined by her physician was solely at her discretion." Based upon this finding and the court's conclusions in Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), rev'd on other grounds, 783 P.2d 273 (Colo. 1989), and Safeway Stores, Inc. v. Husson, 732 P.2d 1245 (Colo.App. 1986), the ALJ determined that the claimant was "at fault" for her employment separation. Therefore, the ALJ denied the claim for temporary disability benefits between December 31, 1993 and April 28, 1994.
On review, the claimant contends that the ALJ erred in finding that the claimant was "at fault" for the employment separation, and that the ALJ's order is not supported by the applicable law. We conclude that the ALJ's findings of fact are insufficient to determine whether the ALJ's order is supported by the applicable law, and therefore, we remand the matter for entry of additional findings.
As stated by the ALJ, a claimant is precluded from receiving temporary disability benefits where an intervening event severs the causal connection between the industrial injury and the claimant's wage loss. See Safeway Stores, Inc. v. Husson, supra. In Monfort v. Husson, supra, the court held that the termination of employment out of which the industrial injury arose constitutes an intervening event, if the claimant is "at fault" for the termination. "Fault" has been defined to mean that the claimant "performed some volitional act or otherwise exercised a degree of control over the circumstances" resulting in the separation. Padilla v. Digital Equipment Corp. 902 P.2d 414 (Colo.App. 1994), judgment vacated and remanded for reconsideration in light of PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo 1995).
The record in this matter contains substantial evidence that the claimant's "light duty" employment was within the medical restrictions established by Dr. Bronstein. (Tr. pp. 7-9, 11). Furthermore, the ALJ's finding that the claimant could have continued the light duty work is a plausible inference from the record. (Tr. pp. 16, 18, 19-21). This inference supports a determination that the claimant exercised a degree of control over the circumstances resulting in her job separation when she chose the voluntary retirement package instead of continuing the light duty work offered by the respondent-employer. Therefore, we must uphold the ALJ's determination that the claimant was "at fault" for the separation from her employment. Keil v. Industrial Claim Appeals Office, 847 P.2d 235 (Colo.App. 1993); Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
In view of our conclusion we necessarily reject the respondents' contention that the Monfort analysis does not apply to voluntary separations from employment. To the contrary, the court has followed Monfort and Safeway Stores, Inc., to hold that, under some circumstances, a voluntary retirement may constitute an intervening event for purposes of precluding further temporary disability benefits. See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); State Compensation Insurance Authority v. Industrial Commission, 786 P.2d 423 (Colo.App. 1989).
Nevertheless, the Supreme Court has held that a "fault" determination under Monfort is not dispositive of a claim for temporary disability benefits. In PDM Molding, Inc. v. Stanberg, supra, the court held that a "fault" determination does not preclude an award of temporary disability benefits if the claimant reestablishes a causal connection between the industrial injury and the post-separation wage loss. PDM Molding, Inc. v. Stanberg, supra; Lindner Chevrolet v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0438, November 9, 1995). In so doing, the claimant need not prove that the industrial injury is the sole cause of the post-separation wage loss. Rather, the claimant is only required to prove that, "to some degree," the wage loss is attributable to the effects of the industrial injury, and temporary disability benefits are precluded only when the work-related injury plays no part in the claimant's subsequent wage loss. PDM Molding, Inc. v. Stanberg, supra; Lindner Chevrolet v. Industrial Claim Appeals Office, supra.
Here, the claimant testified that although she was performing "light duty" work, she was not feeling good and Dr. Bronstein recommended that she retire because that was the only way she was going to improve her condition. (Tr. pp. 9, 10, 17). This testimony suggests that the claimant's rejection of continued employment was prompted by a belief that leaving the employment would cure or relieve the effects the industrial injury. Therefore, the record contains some evidence, which if credited, might support a finding that, to some degree, the industrial injury contributed to the claimant's retirement and subsequent wage loss.
The claimant's testimony was the only evidence presented at the hearing. The record also indicates that the respondents did not dispute Dr. Bronstein's statement that he believed the claimant's condition would improve if she retired. (Tr. p. 31).
However, the ALJ made no specific findings of fact concerning this testimony. Nor did the ALJ make any findings concerning the legal standard established in PDM Molding Inc. v. Stanberg, supra. Furthermore, the ALJ's determination that the claimant's election to retire was "solely at her discretion," does not compel a conclusion that the industrial disability played no part in the claimant's subsequent wage loss. Under these circumstances, the ALJ's findings are insufficient to permit appellate review of whether the ALJ correctly determined that the claimant's retirement constituted an intervening event which precluded the claimant from recovering temporary disability benefits in connection with her subsequent wage loss. Therefore, we remand the matter for additional findings of fact which resolve the pertinent issue required by PDM Molding, Inc. v. Stanberg, supra, and the entry of a new order.
IT IS THEREFORE ORDERED that the ALJ's order dated June 16, 1995, is set aside insofar as it denies the claim for temporary disability benefits, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed February 7, 1996 to the following parties:
Rosie Trujillo, 346 E. Longs Peak, Longmont, CO 80501
Mark Magill, Valleylab, Inc., Personnel Dept., 5920 Longbow Dr., Boulder, CO 80301
George Fairbanks, Wausau Ins. Co., 9110 E. Nichols Ave., Ste. 100A, Englewood, CO 80111
Ruth Irvin, Esq., 5353 Manhattan Cir., Ste. 101, Boulder, CO 80303 (For the Claimant)
William M. Sterck, 679 Grant St., Denver, CO 80203 (For the Respondents)
BY: _______________________