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Black Roofing v. West8/6/1998
Review of Order from the Industrial Claim Appeals Office of the State of Colorado
WC No. 4-310-363
ORDER AFFIRMED
Division V
In this workers' compensation proceeding, Black Roofing, Inc. (employer), and its insurer, Colorado Compensation Insurance Authority, seek review of the final order issued by the Industrial Claim Appeals Office (Panel) awarding temporary total disability (TTD) benefits to April D. West (claimant). We affirm.
Claimant sustained a compensable injury to her lower back in June 1996, while shoveling rock for employer. She received medical treatment and returned to modified employment with restrictions, which were subsequently removed. On July 23, 1996, employer terminated claimant for drinking on the job and for unexcused absences.
Thereafter, claimant did not work. Her condition grew more painful and she obtained a second medical opinion in September 1996. The physician whom she consulted diagnosed right sciatica with possible radiculopathy and a possible herniated nucleus pulposus. He also noted that claimant's symptoms appeared consistent with her prior symptomatology and that her condition "looks to be a continuation of her work injury ."
When claimant's initial treating physician saw her in November 1996, he concurred with the second physician's diagnosis, but disagreed that claimant's condition was related to her work injury .
In February 1997, claimant obtained an examination by a division-appointed independent medical examiner (IME). The IME noted that, subsequent to her initial work injury , claimant had sustained injuries in a car accident and as a result of a beating, but concluded that these events did not affect her lower back injury and that her condition was related to the June 1996 work injury.
After an evidentiary hearing, the Administrative Law Judge (ALJ) found that employer had failed to overcome the IME's determination that claimant's condition was causally related to her industrial accident. The ALJ also found that claimant was not offered modified employment consistent with her work restrictions during the period between her injury and her termination. The ALJ therefore determined that claimant was entitled to TTD benefits.
The Panel upheld the award of TTD benefits on review. It concluded that the record supported the ALJ's determination that claimant's back problems were a compensable component of her industrial injury , and that the ALJ reasonably could infer that the disability resulting from the industrial injury contributed to some degree to claimant's subsequent unemployment.
Employer and the Colorado Compensation Insurance Authority contend that the Panel erred in awarding TTD benefits, primarily because claimant made no showing that, after her termination, she had conducted a reasonable job search that was unsuccessful because of the injury . We do not agree that claimant was required to present such proof as a prerequisite to her recovery of TTD benefits.
If a claimant is terminated for fault, and a work-related injury contributes to some degree to the subsequent wage loss, the claimant remains eligible for TTD benefits pursuant to ยง8-42-105, C.R.S. 1997. However, once a termination for fault is established, the claimant bears the burden of proving, by a preponderance of the evidence, that the injury contributed to the wage loss. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995).
Contrary to petitioners' contention, PDM Molding does not require proof of a reasonable but unsuccessful job search in order to establish that a post-termination wage loss is in some degree caused by the inj
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