Temporary Partial Disability Benefits

In Montoya, the Court of Appeals considered whether the Industrial Claim Appeals Office (ICAO) erred in requiring a Claimant seeking temporary partial disability (“TPD”) benefits to demonstrate both medical incapacity and loss of wage earnings. The Court concluded 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 (“Act”). As such, because the Claimant here showed that she lost wages due to a work-related injury, she was entitled to TPD.

Claimant was an interior designer whose entire paycheck was commission-based. She suffered a work-related injury and underwent medical treatment.  It was undisputed that Claimant was neither given work restrictions nor medically limited in her ability to work.

However, some of those appointments for treatment occurred during work hours. Claimant believed this caused her to lose $20,000 in earnings when she compared her previous year’s numbers to the injured year.

The Administrative Law Judge (ALJ) concluded that there was no evidence that Claimant’s authorized treating physician (ATP) took Claimant off work for her medical appointments, and there was no evidence that Claimant was unable to perform her job duties.  Nevertheless, the ALJ found Claimant lost commissions as a result of missing time to attend the appointments, and that she “sustained a wage loss, despite having a full duty release” and awarded TPD to compensate her for the loss of commissions while attending medical appointments.

The Panel set aside the ALJ’s order regarding the award of TPD, reasoning that disability benefits are only available if a Claimant shows both “ ‘medical incapacity’  which is shown by a 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 employment.”  The Panel determined that because the Claimant had no work restrictions and could perform all her job duties, she could not prove “medical incapacity” and as a matter of law, was not entitled to TPD. See Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999).

The Court of Appeals reversed. The Court concluded that the two-prong test set forth by the Supreme Court in Culver was dictum and not binding. Next, the Court traced the line of cases defining “disability” and determined that not a single case required the Claimant to establish both medical incapacity and loss of wage earnings to qualify for disability benefits.

The Court concluded 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.” It ultimately held that Claimant was entitled to TPD benefits because it determined Claimant’s documented commission decrease was attributable to her numerous medical and therapy appointments, thereby making Claimant’s wage loss attributable to her admitted work injury.

Montoya v. ICAO, 17CA0322 (Colo. App. 2018).

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 720.488.9586


From the February 2018 Pollart Miller Newsletter