W.C. No. 4-573-711Industrial Claim Appeals Office.
March 8, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) insofar as it denied temporary partial disability (TPD) benefits and temporary total disability (TTD) benefits after the claimant’s termination from employment. We affirm.
The claimant does not dispute the ALJ’s pertinent findings of fact. On March 21, 2002, the claimant sustained a compensable back injury while pouring concrete. However, the claimant did not report the injury and continued working for respondent Discount Concrete until June 7, 2002. On June 7 the claimant quit his employment with Discount Concrete because the owners of the company were getting a divorce and the claimant had “personal problems of his own.” Thereafter, the claimant found several jobs involving duties similar to those he performed at Discount Concrete. Throughout this period the claimant suffered back pain which gradually worsened. In March 2003 the claimant experienced an acute flare-up of back pain.
The claimant sought an award of TPD and TTD benefits after March 21, 2002. However, the ALJ found the claimant was responsible for the termination of employment on June 7, 2002, because he voluntarily left work for reasons unrelated to the industrial injury. Therefore, applying § 8-42-103(1)(g), C.R.S. 2003, and § 8-42-105(4), C.R.S. 2003 (termination statutes), and the holding in Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA04441, February 13, 2003), the ALJ held the claimant was barred from receiving any temporary disability benefits.
On review, the claimant argues that when a claimant “leaves his employment when he has no physical restriction, no physical impairment, and is perfectly capable of doing all pre-injury jobs,” the claimant should not be disqualified from receiving temporary benefits if the injury-related condition subsequently worsens and the claimant becomes unable to work. We disagree.
The termination statutes provide that if a “temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061, 1063
(Colo.App. 2002), the court held the term “employment” is “not ambiguous and encompasses both modified and regular employment.” Thus, the claimant’s argument notwithstanding, the statute applies even if the termination occurs at a time when the claimant has no restrictions and is performing the pre-injury employment.
Further, in Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra, the court held that even if a claimant’s condition worsens after the original termination so as to preclude the claimant from performing subsequently held employment, the wage loss still “results” from the claimant’s action in causing the original termination. The Longmont Toyota court construed the termination statutes as creating a “permanent bar to receipt of temporary disability benefits when a claimant is responsible for his or her separation from employment and the separation is for causes within the employee’s control, but unrelated to the industrial injury.” We note that in setting aside our order in Krause v. Sorter Construction, Inc., (W.C. No. 4-525-245, January 29, 2003), the court held that even if the claimant’s condition worsens and he become totally disabled from any work subsequent to a separation from modified employment the wage loss remains attributable to the termination. Sorter Construction, Inc. v. Industrial Claim Appeals Office, (Colo.App. No. 03CA0279, December 18, 2003) (not selected for publication).
Thus, the ALJ’s order in this case is in accord with the applicable law and must be upheld. Further, we lack jurisdiction to consider the claimant’s constitutional arguments. Peregoy v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0557, January 29, 1994) Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shownbelow on March 8, 2004 by A. Hurtado.
Robert Green, 2595 Woodale Rd., #38, Colorado Springs, CO 80906
Roberts Discount Concrete, LLC d/b/a Discount Concrete, P. O. Box 49724, Colorado Springs, CO 80949
Legal Department, Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
T. Paul Krueger, II, Esq. and Charlotte Veaux, Esq., 111 So. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)