Montoya v. Industrial Claim Appeals Office of the State of Colorado , 2018 COA 19 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 8, 2018
2018COA19
No. 17CA0322, Montoya v. ICAO — Labor and Industry —
Workers’ Compensation — Temporary Partial Disability
In this workers’ compensation action, a division of the court of
appeals considers whether a panel of the Industrial Claim Appeals
Office erred in requiring a claimant seeking temporary partial
disability benefits to demonstrate both medical incapacity and loss
of wage earnings. The majority concludes that, although the
concept of “disability” incorporates both medical incapacity and loss
of wage earnings, a claimant is not required to prove both
components to establish entitlement to disability benefits under the
Workers’ Compensation Act. Because the claimant here showed
that she lost wages due to a work-related injury, she was entitled to
temporary partial disability benefits.
Accordingly, the division sets aside the order of the Industrial
Claim Appeals Office panel.
The dissent relies on a two-part definition of “disability” set
forth in Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999), to
conclude that the Industrial Claim Appeals Office panel did not err.
Because the claimant here did not demonstrate that any medical
incapacity prevented her from doing her job, the dissent would
affirm the order holding that she was not entitled to temporary
partial disability benefits.
COLORADO COURT OF APPEALS 2018COA19
Court of Appeals No. 17CA0322
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-974-821
Myra Montoya,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado; Ethan Allen Retail,
Inc.; and Travelers Indemnity Company,
Respondents.
ORDER SET ASIDE AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Richman, J., concurs
Furman, J., dissents
Announced February 8, 2018
McDivitt Law Firm, Aaron S. Kennedy, Colorado Springs, Colorado, for
Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Ray Lego & Associates, Michael J. Buchanan, Gregory W. Plank, Greenwood
Village, Colorado, for Respondents Ethan Allen Retail, Inc., and Travelers
Indemnity Company
¶1 In this workers’ compensation action, claimant, Myra
Montoya, seeks review of a final decision of the Industrial Claim
Appeals Office (Panel) holding that she was not entitled to
temporary partial disability (TPD) payments because her injury did
not meet the criteria for a “disability.” We conclude that the Panel
interpreted “disability” too narrowly and therefore set aside its
decision.
I. Background
¶2 Claimant worked as an interior designer for employer, Ethan
Allen Retail, Inc. On December 30, 2014, claimant suffered
admitted, work-related injuries to her left ankle and foot, as well as
to her back and shoulders. Her treatment included numerous
medical, physical therapy, massage therapy, chiropractic, and dry
needling appointments. Although she attended many medical
appointments, claimant was neither given work restrictions nor
medically limited in her ability to work.
¶3 Claimant’s income was entirely based on commissions. While
she was undergoing treatment for her work-related injuries, she
was required to schedule some medical appointments during her
normal working hours. Because of the appointments, she was
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absent from the showroom floor and could not meet potential and
current clients. She testified that those absences — all of which
occurred in 2015 in the twelve months after her injury — caused
her to lose more than $20,000 in commission earnings, as
evidenced by the difference between her 2014 earnings ($69,701.04)
and her 2015 earnings ($44,853.82). She also testified that, at the
time of the hearing in June 2016, her earnings had rebounded and
she had earned over $45,000 during the first half of 2016 alone.
¶4 After conducting a hearing, the administrative law judge (ALJ)
concluded that “there was no evidence in the record . . . that
[c]laimant’s ATP [authorized treating physician] took her off work
when she had medical appointments.” Similarly, he concluded
“there was no evidence [c]laimant was unable to perform her job
duties, although she testified she had [received] assistance and also
had to leave on occasion because of medical appointments.”
However, the ALJ also found that claimant lost commissions as a
result of her work-related injuries. Specifically, he concluded that
claimant “sustained a wage loss, despite having a full duty release
to return to work.” Based on these findings and conclusions, the
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ALJ awarded claimant TPD benefits to compensate her for the
commissions she lost while attending medical appointments.
¶5 The Panel affirmed that part of the ALJ’s order determining
that claimant overcame the rating of the division-sponsored
independent medical examination physician and that she was
entitled to additional permanent partial disability benefits.
However, the Panel set aside that part of the ALJ’s order awarding
claimant TPD benefits. The Panel reasoned that disability benefits
are only available if a claimant demonstrates both “‘medical
incapacity’ evidenced by loss or impairment of bodily function” and
“temporary loss of wage earning capacity, which is evidenced by the
claimant’s inability to perform his or her prior regular employment.”
Here, because the ALJ had found that claimant had no work
restrictions and was able to perform all her job duties, albeit with
some assistance, the Panel held that she did not establish the
requisite “medical incapacity” prong of disability and therefore, as a
matter of law, was not entitled to receive TPD benefits. Claimant
now appeals.
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II. Analysis
¶6 Claimant contends that the Panel’s interpretation of
“disability” is too narrow. She argues that the Panel misinterpreted
the Workers’ Compensation Act (Act) by disregarding a key
difference between the statutes providing for the automatic
termination of TPD and temporary total disability (TTD) benefits. In
addition, claimant argues that the Panel improperly ignored its own
precedent by failing to acknowledge that her health care providers
had “implicitly imposed” restrictions on her. We agree with
claimant’s conclusion, but reach it by a different analysis.
A. Definition of Disability
¶7 In reaching its decision, the Panel relied on a 1999 Colorado
Supreme Court decision that described disability benefits. The
court noted:
Workers’ compensation benefits include
elements of medical impairment compensation
and wage loss protection. Colorado AFL-CIO v.
Donlon, 914 P.2d 396, 404 (Colo. App. 1995).
The “disability concept is a blend of two
ingredients, whose recurrence in different
proportions” has received a great deal of
legislative and judicial attention. The first
ingredient is medical incapacity evidenced by a
loss of a limb, muscular movement, or other
bodily function. The second ingredient is
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wage-earning incapacity evidenced by an
employee’s inability to resume his or her prior
work.
Culver v. Ace Elec., 971 P.2d 641, 649 (Colo. 1999) (quoting 4
Arthur Larson, Larson’s Workers’ Compensation Law § 57.11, at 10-
16 (1994) (now found at 6 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law § 80.02 (2015)); see also Donlon, 914
P.2d at 404 (noting that disability benefits “are intended to
compensate a claimant for the extent to which his or her physical
impairment impacts upon that claimant’s past and future ability to
earn wages”). However, we conclude that the Panel’s reliance on the
Culver court’s definition of “disability” in Colorado is misplaced.
¶8 Although the Culver court described “disability” as having both
medical and wage loss components, it does not necessarily follow
that both elements must be met to justify a disability award. Culver
derived its characterization of “disability” directly from Larson’s
Workers’ Compensation Law. Scrutinizing the excerpt in Larson’s,
however, quickly reveals that the supreme court quoted only a
portion of the Larson’s discussion. When read in context, it is clear
that Larson’s, and thus the supreme court, did not intend to
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mandate evidence of both prongs in order for a claimant to receive
disability benefits. Larson’s states:
It has been stressed repeatedly that the
distinctive feature of the compensation system,
by contrast with tort liability, is that its
awards, apart from medical benefits, . . . are
made not for physical injury as such, but for
“disability” produced by such injury. The
central problem, then, becomes that of
analyzing the unique and rather complex legal
concept which, by years of compensation
legislation, decision, and practice, has been
built up around the term “compensable
disability.”
The key to the understanding of this problem
is the recognition, at the outset, that the
disability concept is a blend of two ingredients,
whose recurrence in different proportions gives
rise to most controversial disability questions:
The first ingredient is disability in the medical
or physical sense, as evidenced by obvious loss
of members or by medical testimony that the
claimant simply cannot make the necessary
muscular movements and exertions; the
second ingredient is de facto inability to earn
wages, as evidenced by proof that claimant has
not in fact earned anything.
The two ingredients usually occur together; but
each may be found without the other: A
claimant may be, in a medical sense, utterly
shattered and ruined, but may by sheer
determination and ingenuity contrive to make
a living. Conversely, a claimant may be able to
work, in both the claimant’s and the doctor’s
opinion, but awareness of the injury may lead
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employers to refuse employment. These two
illustrations will expose at once the error that
results from an uncompromising preoccupation
with either the medical or the actual wage-loss
aspect of disability. An absolute insistence on
medical disability in the abstract would
produce a denial of compensation in the latter
case, although the wage loss is as real and as
directly traceable to the injury as in any other
instance. At the other extreme, an insistence
on wage loss as the test would deprive the
claimant in the former illustration of an award,
thus not only penalizing his or her laudable
efforts to make the best of misfortune but also
fostering the absurdity of pronouncing a
person nondisabled in spite of the unanimous
contrary evidence of medical experts and of
common observation. The proper balancing of
the medical and wage-loss factors is, then, the
essence of the “disability” problem in workers’
compensation.
Larson & Larson, § 80.02 (emphases added) (footnotes omitted).
Plainly, then, a thorough reading of the Larson’s passage upon
which the supreme court relied reveals that the treatise cautions
against the path followed by the Panel ― requiring a claimant to
prove both medical incapacity and loss of wage earnings to
establish “disability.”
¶9 Moreover, a close reading of Culver reveals that the supreme
court’s description of disability was not dispositive of the issue
raised in that case. In Culver, the issue was the calculation of
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Social Security benefits offsets against workers’ compensation
disability payments. No party to Culver challenged the affected
workers’ disability status; rather, the issue raised was the propriety
of and order in which offsets should be calculated. See 971 P.2d at
647-54. We therefore conclude that the quoted language from
Culver, on which the Panel relied, was dictum and thus not binding
on us here.
¶ 10 Instead, we look to previous cases that clearly and
unambiguously defined “disability.” As early as 1940, the supreme
court expressed its view that “disability” “means industrial disability
or loss of earning capacity and not mere functional disability.”
Byouk v. Indus. Comm’n, 106 Colo. 430, 434, 105 P.2d 1087, 1089
(1940). Two decades later, the supreme court repeated this
definition. Colo. Fuel & Iron Corp. v. Indus. Comm’n, 151 Colo. 18,
24, 379 P.2d 153, 156 (1962). A division of this court again echoed
this definition in 1980. Matthews v. Indus. Comm’n, 627 P.2d 1123,
1124 (Colo. App. 1980) (“‘disability’ means loss of earning
capacity”). By the 1990s, the definition was slightly refined, but the
same basic meaning remained. See Baldwin Constr. Inc. v. Indus.
Claim Appeals Office, 937 P.2d 895, 897 (Colo. App. 1997) (“[A]n
8
impairment becomes a disability only when the medical condition
limits the claimant’s capacity to meet the demands of life’s
activities.”); Boice v. Indus. Claim Appeals Office, 800 P.2d 1339,
1341 (Colo. App. 1990) (“[T]he term ‘disability’ means loss of
earning capacity or an inability to work as effectively or as
efficiently as claimant did prior to the injury.”). Notably, none of
these cases expressly defining “disability” has mandated that a
claimant must establish both “medical incapacity” and “loss of wage
earnings” to qualify for disability benefits. Further, the supreme
court has not explicitly overturned any of these cases defining
“disability.”
¶ 11 We therefore conclude that although the concept of disability
incorporates both “medical incapacity” and “loss of wage earnings,”
a claimant need not prove both components to establish entitlement
to disability benefits under the Act.
¶ 12 Because we have concluded that the Panel’s two-pronged test
for “disability” too narrowly limits the scope of the term, we need
not address claimant’s contention that differences between section
8-42-103(1), C.R.S. 2017, on the one hand, and section
8-42-105(3), C.R.S. 2017, and § 8-42-106(2), C.R.S. 2017, on the
9
other hand, illustrate that the legislature did not intend “disability”
to be read as narrowly as the Panel held. The latter two sections
claimant points to address the termination of disability benefits, not
their commencement, and therefore are inapposite here. Nor do we
address claimant’s reliance on the Panel’s earlier decision in Boddy
v. Sprint Express Inc., W.C. No. 4-408-729, 2000 WL 1368970 (Colo.
I.C.A.O. Aug. 15, 2000). Although we defer to the Panel’s
reasonable interpretations of the Act, Dillard v. Indus. Claim
Appeals Office, 121 P.3d 301, 304 (Colo. App. 2005), aff’d, 134 P.3d
407 (Colo. 2006), we are not bound by earlier Panel decisions.
Leewaye v. Indus. Claim Appeals Office, 178 P.3d 1254, 1258 (Colo.
App. 2007).
B. Claimant’s Entitlement to TPD Benefits
¶ 13 Having determined that the Panel erred by requiring claimant
to demonstrate both “medical incapacity” and “earning wage loss,”
we turn to the question whether the evidence supported claimant’s
TPD award.
¶ 14 “Whether a claimant’s industrial disability has caused or
contributed to his reduced earnings is a question of fact, and the
ALJ’s resolution of this issue, if supported by substantial evidence,
10
is conclusive on review.” City of Aurora v. Dortch, 799 P.2d 461,
463 (Colo. App. 1990) (citation omitted).
¶ 15 Here, the ALJ found that claimant’s documented commission
decrease was attributable to her numerous medical and therapy
appointments. Through her own testimony and submitted pay
stubs, claimant showed that during the year she underwent
treatment for her work-related injury she earned approximately
$20,000 less than she had earned the previous year. She testified
that she took no other significant time off work and was not absent
for any length of time for any reason other than her medical and
therapy appointments. Employer does not dispute this evidence.
We conclude that this evidence amply supports the ALJ’s finding
that claimant’s wage loss was attributable to her admitted work-
related injury. Id.
III. Conclusion
¶ 16 Because substantial evidence supports the ALJ’s factual
findings, and the ALJ properly applied the law to this case, we hold
that the Panel erred in setting aside the ALJ’s decision.
¶ 17 We therefore set aside the Panel’s decision and remand the
case with instructions to reinstate the ALJ’s order concluding that
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claimant was entitled to receive TPD benefits from December 31,
2014, through September 2, 2015, and ordering employer to pay
any outstanding TPD amounts accrued during this period.
JUDGE RICHMAN concurs.
JUDGE FURMAN dissents.
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JUDGE FURMAN, dissenting.
¶ 18 I respectfully dissent from the majority because in my opinion
the two-part definition of “disability” described in Culver v. Ace
Electric, 971 P.2d 641 (Colo. 1999), is binding on this court. Based
on this binding law, I agree with the Industrial Claim Appeals Office
(ICAO) panel that Montoya did not establish that she has a
disability entitling her to temporary partial disability benefits.
¶ 19 Section 8-42-103(1), C.R.S. 2017, provides that a claimant be
paid disability indemnity as wages “[i]f the injury or occupational
disease causes disability.” The statute does not define “disability,”
but our supreme court described it this way:
Workers’ compensation benefits include elements
of medical impairment compensation and wage
loss protection. See Colorado AFL-CIO v. Donlon,
914 P.2d 396, 404 (Colo. App. 1995). The
“disability concept is a blend of two ingredients,
whose recurrence in different proportions” has
received a great deal of legislative and judicial
attention. 4 [Arthur Larson, Larson’s Workers’
Compensation Law], at § 57.11, 10-16 [(1994)].
The first ingredient is medical incapacity
evidenced by a loss of a limb, muscular
movement, or other bodily function. The second
ingredient is wage-earning incapacity evidenced
by an employee’s inability to resume his or her
prior work. See 4 Larson, supra, at § 57.11, 10-
16.
13
Culver, 971 P.2d at 649.
¶ 20 Both the ICAO panel in its order and employer, Ethan Allen
Retail, Inc., in its answer brief cited this definition as “well settled.”
In her opening brief, Montoya cited this two-part definition, and the
Boddy case on which she relies also cited this definition. Boddy v.
Sprint Express Inc., W.C. No. 4-408-729, 2000 WL 1368970, at *1
(Colo. I.C.A.O. Aug. 15, 2000).
¶ 21 In this case, it was undisputed that Montoya was released by
the attending physician to regular duty without restrictions just one
day after her injury. The ALJ found that the injury did not impair
Montoya’s ability to perform the duties of her employment. And,
there is nothing in the record to establish that Montoya had any
sort of medical incapacity that prevented her from being able to do
her job.
¶ 22 Accordingly, because I believe the ICAO panel’s interpretation
of law was correct and its findings are supported by the record, I
would affirm the order.
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