W.C. No. 4-437-497Industrial Claim Appeals Office.
March 7, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded temporary disability benefits. The respondents contend the ALJ erred in concluding that the claimant was not “responsible” for the termination of his employment within the meaning of § 8-42-103(1)(g), C.R.S. 2000, and § 8-42-105(4), C.R.S. 2000. We affirm.
The pertinent facts are undisputed. In 1992 the claimant began working for the respondent-employer as a trash truck driver. His duties included driving various trash trucks. The employer had a policy which provided that any driving accident involving an employee may be grounds for the termination of employment.
On Thursday, September 30, 1999, the claimant suffered disabling injuries in a one vehicle accident while driving a trash truck. The accident occurred when the claimant made a sharp turn in a loaded trash truck. The posted speed limit was 45 miles per hour with a curve warning sign and an advisory speed limit of 20 miles per hour. The truck ran off the left side of the curve, slid broadside and rolled. The claimant was cited for careless driving. The ALJ found that restrictions imposed by treating physicians rendered the claimant unable to perform his usual duties. (Findings of Fact 18). However, the claimant was released to modified duty. When the claimant returned to work he was immediately terminated because the employer determined the claimant violated its policy by causing the trash truck accident.
The claimant then requested temporary disability benefits from October 1, 1999 through March 13, 2000, when he obtained alternative employment. The respondents admitted liability for medical benefits, but denied temporary disability benefits on grounds the claimant was “responsible” for the termination of employment. The respondents argued the claimant is precluded from receiving temporary disability benefits under § 8-42-103(1)(g) and § 8-42-105(4). These statutes, which apply to injuries occurring on or after July 1, 1999, contain identical language providing 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.” 1999 Colo. Sess. Laws, ch. 90 at 266-267.
The ALJ determined that the concept of “responsibility” requires a volitional act, meaning the exercise of some control over the circumstances which lead to the termination. Applied to the facts of this claim, the ALJ found the accident was caused by the claimant’s “negligence” or “careless driving.” However, the ALJ determined the “careless driving” was not a volitional act. Therefore, the ALJ found the claimant was not “responsible” for the employment termination within the meaning of § 8-42-103(1)(g) and § 8-42-105(4). Furthermore, the ALJ determined the General Assembly did not intend § 8-42-103(1)(g) and § 8-42-105(4) to operate as a “100 percent reduction in temporary indemnity benefits if the injury is the result of the claimant’s negligence.” The ALJ reasoned that such a result would be inconsistent with the no-fault principles of the Act. Consequently, the ALJ determined that these statutes do not apply to the facts of this claim and awarded temporary disability benefits.
On review the respondents contend the ALJ erred in finding the claimant was not “responsible” for the employment termination. The respondents also contest the ALJ’s determination that §8-42-103(1)(g) and 8-42-105(4) do not govern the circumstances of this claim for temporary disability benefits. We agree with the ALJ that these statutes do not apply to the facts presented here. Consequently, we need not reach the question of whether the ALJ correctly found the claimant was not “responsible” for the termination.
The principal rule of statutory construction is that statutes must be construed to effect the legislative intent. Weld County School District Re-12 v. Bymer, 955 P.2d 550 (Colo. 1998); United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152
(Colo. 2000). To discern the legislative intent we must first give the words in the statute their plain and ordinary meanings, unless the result is absurd. Snyder Oil Co. v. Embree, 862 P.2d 259
(Colo. 1993); Popke v. Industrial Claim Appeals Office, 944 P.2d 677
(Colo.App. 1997). Where the language of a statute is capable of more than one interpretation, it is ambiguous and must be construed in light of the apparent legislative intent and purpose Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996). In such circumstances, we must construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all its parts. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997). We should also consider the problem sought to be addressed by the statute, the circumstances under which this statute was enacted, the legislative history behind the statute, and the consequences of alternative constructions. United Airlines, Inc. v. Industrial Claim Appeals Office, supra; Mountain City Meat Co. v. Oqueda supra; Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
We conclude that, in the context of § 8-42-103(1)(g) and §8-42-105(4), the term “employment” is ambiguous because it is subject to more than one interpretation. 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 shall consider the legislative history of the statutes.
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 suggest 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. Therefore, the legislature adopted language which precludes the ALJ from attributing a claimant’s post-separation wage loss to the effects of the industrial injury where the claimant is “responsible” for the termination of employment.
Moreover, when a statute is amended it is presumed the General Assembly intended to change the law. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Consequently, we presume the legislature intended to overturn PDM and its progeny by the enactment of enacted § 8-42-103(1)(g) and §8-42-105(4). In other words, the General Assembly intended to reinstate the principles applied in Monfort of Colorado v. Husson, supra, and shift the financial burden for the loss of wages to the claimant in circumstances where the claimant’s misconduct causes the termination of modified employment.
In contrast, the respondents’ proposed interpretation is inconsistent with the “no fault” character of the Workers’ Compensation Act (Act). Specifically, the employer assumes liability for work-related injuries irrespective of fault, and, in return, employees receive limited benefits and are precluded from bringing a suit at common law. Digliani v. City of Fort Collins, 873 P.2d 4 (Colo.App. 1993). Consequently, the employee’s “want of ordinary care” is not a defense to the employer’s liability for workers’ compensation. Section 8-41-101 C.R.S. 2001. If a claimant is deprived of temporary benefits because he is “at fault” for causing the injury itself, as opposed to the loss of subsequent modified employment, a fundamental tenet of the Act would be undermined. We decline to impose such an interpretation since it does not provide a harmonious interpretation of the entire Act, and would lead to absurd results.
Moreover, the Act already contains a specific penalty where the employee’s misconduct causes the injury. Under § 8-42-112, C.R.S. 2000, indemnity benefits are subject to a 50 percent reduction where the injury is the result of the claimant’s willful misrepresentation to the employer concerning his ability to perform the job, or the injury is caused by the claimant’s willful failure to obey a reasonable safety rule or use a safety device. The reduction is available retroactive to the date of injury, even where the employer fails to assert the penalty at the time it files the initial admission of liability. Arenas v. Industrial Claim Appeals Office, supra. The term “willful” has been defined as deliberate or intentional misconduct. See Kwik Way Stores, Inc., v. Caldwell, 745 P.2d 672 (Colo. 1987). We agree with the ALJ that it would be illogical, and lead to absurd results, to read the Act as limiting the employer to a 50 percent reduction of disability benefits where the employee’s misconduct is deliberate or intentional, but allowing temporary benefits to be reduced 100 percent where the employee is “responsible” for the injury because he exercised some control over the circumstances leading to the injury. See Arenas v. Industrial Claim Appeals Office supra; Popke v. Industrial Claim Appeals Office, supra (General Assembly is presumed to have intended a just and reasonable result).
Here, there is no finding or assertion that the claimant was terminated because he was responsible for the loss of post-injury modified employment. Rather, the claimant was terminated because he was considered to be “responsible” for causing the injury itself. Consequently, even if the claimant was “responsible” for the termination of his employment, § 8-42-103(1)(g) and §8-42-105(4) do not apply and the ALJ did not err in awarding temporary disability benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 18, 2000, is affirmed.
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. 2000. 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 March 7, 2001 to the following parties:
Matthew J. Martinez, 931 Querida Dr., Colorado Springs, CO 80909
Colorado Springs Disposal d/b/a Bestway Disposal, P. O. Box 101621, Denver, CO 80250-1621
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Joseph R. Winston, Esq. and Haydn Winston, Esq., 10 Boulder Crescent, #100, Colorado Springs, CO 80903 (For Claimant)
Lisa A. Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy