W.C. No. 4-437-717Industrial Claim Appeals Office.
January 28, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ). The claimant contends the ALJ erred insofar as she terminated temporary total disability benefits effective October 10, 2000. We agree and, therefore, reverse the contested portion of the order.
At all times relevant, the claimant was employed as a truck driver. On September 27, 1999, the claimant suffered admitted injuries when 15 to 20 pipes fell off a truck he was unloading, knocking him down and hitting him in the chest. The respondents admitted liability for temporary total disability benefits commencing September 28, 1999. However, the employer terminated the claimant’s employment in August 2000 for concealing that he is an insulin dependent diabetic on his Employment Application and on medical forms required to renew his Commercial Driver’s License.
Relying on § 8-42-103(1)(g), and § 8-42-105(4), C.R.S. 2001, the ALJ determined the claimant was “responsible” for the termination of his employment. Therefore, the ALJ granted the respondents permission to terminate temporary total disability benefits effective October 10, 2000, the date of the hearing on the issue of temporary disability.
On appeal the claimant contends, inter alia, the ALJ erred in finding § 8-42-103(1)(g) and § 8-42-105(4) are applicable to the circumstances presented here. We agree.
Initially, we note that the claimant’s Designation of Record includes the “entire Division of Workers’ Compensation and Division of Administrative Hearings file.” The record transmitted to us on appeal apparently does not include the entire Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
Temporary total disability benefits are due where the claimant proves a causal connection between the industrial injury and the temporary loss of wages. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995); see also McKinley v. Bronco Billy’s, 903 P.2d 1239 (Colo.App. 1995). Once the claimant sustains his initial burden of proof, temporary disability benefits continue until terminated in accordance with §8-42-105(3)(a)-(d), C.R.S. 2001. Under § 8-42-105(3)(a)-(d), temporary total disability benefits terminate when the claimant reaches MMI, returns to regular or modified employment, is medically released to regular employment, or refuses a written offer of modified employment.
However, § 8-42-105(4) and identical language in §8-42-103(1)(g) provide that, “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” We have previously held the statutory references to a “temporarily disabled employee” means an employee who is unable to perform his regular work as a result of the injury. Williams v. Team Panel International Inc., W.C. No. 4-452-283 (June 13, 2001); Grant v. Speedy G’s Mexican Restaurant, W.C. No. 4-449-941(May 17, 2001). This is true because one of the requirements for establishing entitlement to temporary disability benefits is proof the claimant “left work as a result of the injury,” meaning the claimant was disabled from performing the work he held at the time of the injury. PDM Molding, Inc. v. Stanberg, supra; Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
Applying the rules of statutory construction, we have also concluded that, in the context of § 8-42-103(1)(g), the term “employment” is ambiguous because it is subject to more than one interpretation McGaffey v. Assured Transportation Delivery, Inc., W.C. No. 4-434-706
(April 27, 2001); Martinez v. Colorado Springs Disposal, W.C. No. 4-437-497
(March 7, 2001). The term could refer to any job the claimant possessed, including the one held at the time of the industrial injury itself. It could also refer to modified employment which the claimant obtains subsequent to a determination that the claimant has become a “temporarily disabled employee” as a result of the injury. Therefore, in an effort to determine the legislative intent, we considered the legislative history of the statutes. The following language fro Martinez v. Colorado Springs Disposal, supra, is instructive:
“Prior to 1991, the applicable law provided that an injured worker who was temporarily totally disabled as the result of a compensable injury was entitled to temporary disability benefits until the worker reached maximum medical improvement (MMI), returned to work, or was able to return to work. Section 8-42-105 C.R.S. (1990 Cum. Supp.). However, in Monfort of Colorado v. Husson, 725 P.2d 67
(Colo.App. 1986), rev’d on other grounds, 783 P.2d 273 (Colo. 1989), the court held that if a temporarily disabled claimant returns to modified employment, and is “at fault” for the loss of that employment, the post-separation wage loss is caused not by the injury, but by the claimant’s act which led to the separation. Hence, such a claimant was not entitled to a reinstatement of temporary total disability benefits.
In 1991 the legislature enacted sections 8-42-105(3)(a)-(d), which provide that temporary total disability benefits terminate when the claim reaches MMI, returns to regular or modified employment, is medically released to regular employment or is medically released to modified employment and fails to begin a written offer of such employment. Nevertheless, in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the court held that a claimant who sustains a work-related injury and is subsequently terminated for fault from the employment out of which the injury arose is not automatically disqualified from receiving temporary benefits. Instead, the court interpreted the causation element of § 8-42-103(1)(a), C.R.S. 2000, as permitting an award of temporary disability benefits for the subsequent wage loss if the “work-related injury contributed to some degree” to the wage loss. The Supreme Court stated that it did not seek to encourage misconduct by rewarding it, but cited an Arizona case for the proposition that a claimant whose loses a post-injury job because of misconduct should not forfeit “benefits for a loss of earning capacity which, in some cases, is quite profound.” Id. at 548. Consequently, PDM explicitly overruled Monfort of Colorado v. Husson to the extent Monfort is inconsistent with PDM. Since PDM, the courts have consistently sought to determine whether the claimant was at fault for the loss of post-injury employment and, if so, whether the injury remained to some degree the cause of the subsequent wage loss. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Black Roofing Inc., v. West, 967 P.2d 195 (Colo.App. 1998).
It is against this backdrop that we consider that legislative history of § 8-42-103(1)(g) and § 8-42-105(4). The testimony at the hearings suggests the General Assembly sought to preclude an injured worker from recovering temporary disability benefits where the worker is at fault for the loss of post-injury modified employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss. See House Business, Affairs Labor Committee, January 14, 1999, at 2:00 p.m.; Senate Committee on State, Veterans Military Affairs, February 2, 1999, 1:39 p.m.”
Consequently, in a series of cases we concluded that § 8-42-103(1)(g) was enacted to overturn PDM Molding, Inc. v. Stanberg, supra, and preclude an injured worker from recovering temporary disability benefits where the worker is at fault for the loss of post-injury modified
employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss. See Palmasano v. Contractors’ Lab or Pool, W.C. No. 4-474-179 (November 23, 2001); Turner v. Waste Management of Colorado, W.C. No. 4-463-547 (July 27, 2001); Patchek v. Colorado Department of Public Safety, W.C. No. 4-434-706
(April 27, 2001); McGaffey v. Assured Transportation Delivery, Inc., supra; Martinez v. Colorado Springs Disposal, supra.
The respondents essentially contend that the series of cases beginning with Martinez and McGaffey were wrongly decided. The respondents’ arguments do not persuade us to depart from our prior conclusions. Therefore, we adhere to our conclusion that § 8-42-105(4) does not apply unless the claimant is terminated from post-injur modified employment.
The respondents’ arguments notwithstanding, the pertinent facts of this claim are not appreciably different from the facts in Martinez Patchek and Palmasano. Specificall , there is no finding or assertion the claimant was terminated from post-injury modified employment. In fact, there is no contention the claimant has been medically released to resume any employment. Rather, it is undisputed the claimant was temporarily totally disabled at the time the employer terminated the claimant’s employment. Under these § 8-42-103(1)(g) and §8-42-105(4) are not applicable to this case and the ALJ erred in permitting the respondents to terminate temporary total disability benefits pursuant the application of § 8-42-105(4).
In view of our disposition we need not consider the claimant’s further arguments in support of his contention the ALJ erroneously terminated temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated July December 8, 2000, is reversed insofar as it permitted the termination of temporary disability benefits effective October 10, 2000, based on application of §§ 8-42-103(1)(g) or 8-42-105(4).
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 28, 2002 to the following parties:
Glen Zirkle, 4229 Whittier Dr., Colorado Springs, CO 80910
J. D. Adams Culvert Company, 2720 E. Las Vegas St., #100, Colorado Springs, CO 80906
Shannon McGinnis, ICW, 600 S. Cherry St., #527, Denver, CO 80246
Patrick C. H. Spencer, II, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy