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Dyke v. Industrial Claim Appeals Office5/20/1993
Phyllis Van Dyke, claimant, seeks review of a final order of the Industrial Claim Appeals Panel determining that she was not entitled to temporary disability benefits subsequent to October 13, 1986, the date she reached maximum medical improvement. We set aside the order.
The claimant suffered an admitted lower back injury on June 25, 1986. However, on June 27, 1986, the claimant was terminated by her employer based on an incident that had occurred five days prior to her injury. In May 1989, the Administrative Law Judge (ALJ) determined that the claimant was not "at fault" for the termination. Nevertheless, as pertinent here, the ALJ determined that the claimant reached maximum medical improvement on October 13, 1986, and found that the injury did not preclude the claimant from returning to her usual occupation. The claimant, however, remained unemployed. She was awarded temporary total benefits until October 13, 1986, and her claim for temporary total and temporary Partial benefits thereafter was denied and dismissed.
Also in May 1989, the parties stipulated that the claimant would be offered a vocational rehabilitation evaluation, and in August 1990, after the Director determined that the claimant was eligible for vocational rehabilitation benefits, the employer began paying temporary total disability benefits to the claimant. These payments continued until December 1991, when the employer admitted that the claimant was 20 per cent permanently partially disabled and, accordingly, paid permanent partial disability benefits.
Claimant appealed from the 1989 order denying benefits. That order was set aside by the Panel, and it remanded the matter for further findings concerning the applicability of Allee v. Contractors, Inc., 783 P.2d 273 (Colo. 1989). On remand, however, the ALJ determined that Allee was not applicable because that holding addresses situations in which the claimant is on temporary disability benefits caused by the work-related injury .
On subsequent consideration, the Panel agreed that Allee applies only to cases in which the worker has attained maximum medical improvement but is still unable to return to work as a result of the injury while awaiting a vocational rehabilitation determination or program. It also observed that the Allee decision specifically recognizes the possibility that a worker may be eligible for vocational rehabilitation benefits but not be entitled to temporary disability benefits because of intervening events.
Applying those principles to this case, the Panel noted that the claimant did not contest the ALJ's finding that she was not disabled after October 13, 1986, and that such finding was supported by substantial evidence. It therefore concluded that the ALJ's determination that the claimant was in fact physically able to return to work was a "statutory" cause recognized by Allee as justifying an independent termination of temporary disability benefits. Accordingly, the Panel determined that the vocational rehabilitation proceedings here had no effect on claimant's entitlement to further temporary disability benefits.
The Panel also rejected the argument that the claimant was entitled to continued benefits pursuant to the holdings of Lunsford v. Sawatsky, 780 P.2d 76 (Colo. App. 1989) and Monfort of Colorado v. Husson, 725 P.2d 67 (Colo. App. 1986). It reasoned that the holdings of these cases are limited to disabled or impaired workers whose employment is terminated without fault and concluded that since the ALJ had found that the claimant was at maximum medical improvement and was able to return to work full time, she was not entitled
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