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Montoya v. Industrial Claim Appeals Office of State of Colorado

Court of Appeals of Colorado, First Division

February 8, 2018

Myra Montoya, Petitioner,
Industrial Claim Appeals Office of the State of Colorado; Ethan Allen Retail, Inc.; and Travelers Indemnity Company, Respondents.

         Industrial Claim Appeals Office of the State of Colorado WC No. 4-974-821

          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


          TAUBMAN JUDGE.

          ¶ 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 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 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.

          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 ...

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