W.C. No. 4-465-839Industrial Claim Appeals Office.
February 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) insofar as the ALJ denied temporary total disability benefits commencing September 13, 2000. We reverse the contested portion of the order.
The relevant facts are undisputed. The claimant was employed as a line mechanic on June 5, 2000 when he suffered an admitted low back injury which rendered him temporarily totally disabled. On July 26, 2000, the treating physician released the claimant to return to modified duty which did not require frequent lifting over 20 pounds, and frequent bending, squatting, twisting or stooping. The employer accommodated the restrictions until August 31, 2000, when the claimant voluntarily resigned for reasons unrelated to the industrial injury. The claimant subsequently found new employment as a light line mechanic for Century Chevrolet (Century). However, the claimant’s condition worsened. On September 13, 2000, the treating physician restricted the claimant to “seated work only” and precluded the claimant from lifting, twisting and bending. Century was unable to accommodate the claimant’s medical restrictions and, therefore, the claimant sought an award of temporary total disability benefits.
The ALJ found the termination of the claimant’s employment on August 31, 2000, was the result of the claimant’s volitional actions. Consequently, the ALJ determined the claimant was “responsible” for the employment separation within the meaning of § 8-42-105(4), C.R.S. 2001, and barred from receiving temporary total disability benefits commencing September 13.
On appeal, the claimant contends, inter alia, the ALJ misconstrued § 8-42-105(4) as a permanent bar to all temporary disability benefits where the claimant is determined to be “responsible” for the loss of employment. The claimant contends § 8-42-105(4) does not bar the claimant from receiving temporary disability benefits based upon a worsened condition. We agree and, therefore, we reverse the ALJ’s denial of temporary disability benefits commencing September 13, 2000.
Initially, we note that the claimant’s Designation of Record includes the “entire Division of Administrative Hearings and Workers’ Compensation files.” 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). This standard requires the claimant to establish that the industrial injury caused a disability and he left work as a result of the disability. Section 8-42-103(1)(a), C.R.S. 2001.
Section § 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.” (Emphasis added).
Statutes must be construed in such a manner as to further the legislative intent with which they were enacted. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546
(Colo.App. 2001). To discern the intent of the General Assembly, we must first examine the language of the statute. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). In so doing, words and phrases should be given their plain and ordinary meaning, unless the result is absurd Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). If the statutory language is clear and unambiguous, the statute must be applied as written, and it is unnecessary to resort to other rules of statutory construction. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
We have previously held that the statutory reference 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). Furthermore, we have also concluded that, in the context of § 8-42-103(1)(g), the term “employment” is ambiguous because it could refer to any job the claimant possessed, including the one held at the time of the industrial injury itself or it could refer to modified employment which the claimant obtains subsequent to a determination that the claimant has become a “temporarily disabled employee.” 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). Based upon the principles of statutory construction and the legislative history of §8-42-105(4), we concluded the term “employment” refers to post-injury modified employment. The following language from 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.
Accordingly, the court in PDM held that a claimant who is “at fault” for the loss of modified employment may recover temporary disability benefits in connection with the subsequent wage loss, without proof of any worsened condition, as long as 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).
The claimant argues that § 8-42-105(4) does not overrule PDM. We disagree and therefore, the ALJ did not err in denying temporary disability benefits commencing August 31, 2000.
The legislative hearings on the enactment of § 8-42-105(4) 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.” Accordingly we have concluded that the statute 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 remained a proximate cause of the subsequent wage loss. See Palmasano v. Contractors’ Labor 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. We adhere to our prior conclusions.
Nevertheless, under § 8-42-105(4) a determination the claimant is “responsible” for the termination of employment only precludes the claimant from recovering temporary disability benefits for the “resulting” wage loss. The statute does not define the term “resulting.” However, had the General Assembly intended to create a permanent bar to temporary disability benefits, the legislature would have enacted language which stated that if the claimant is responsible for termination of employment, no subsequent wage loss shall be attributable to the on-the-job injury. The General Assembly did not do so and we may not read non-existent provisions into the statute. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000); Compton v. Industrial Claim Appeals Office, 13 P.3d 844 (Colo.App. 2000).
Furthermore, Webster’s II New College Dictionary (1995) defines the term “resulting” as the “consequence or outcome of an action.” Applied to § 8-42-105(4), this definition creates no absurdity. Rather, where the claimant is responsible for termination of employment, the wage loss which is the consequence of the claimant’s actions shall not be attributable to the on-the-job injury. Cf. Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301(September 27, 2001) (if claimant is “responsible” for loss of modified employment paying less than the pre-injury wage, the “resulting” wage loss is the amount paid in the modified employment and the claimant may be eligible for temporary partial disablity benefits).
It is undisputed the claimant was responsible for the August 31 loss of wages. However, the claimant’s loss of modified employment on September 13 was not a consequence of the August 31 resignation. This is true because due to the claimant’s worsened condition, the modified employment he rejected on August 31 exceeded the medical restrictions imposed on September 13. Further, there is no evidence the respondent-employer had “seated only” employment available. Thus, the wage loss after September 13 was not an outcome of the claimant’s voluntary resignation on August 31, 2000. Under these circumstances, the ALJ erred in finding that the claimant was barred by § 8-42-105(4) from receiving temporary total disability benefits commencing September 13, 2000.
In reaching our conclusions we reject the respondents’ contention that our interpretation of § 8-42-105(4) effectively reinstates PDM. Unlike the facts presented here, PDM did not involve a worsening of condition following the termination of modified employment. To the contrary, PDM was based upon a premise that there may be a causal relationship between the industrial disability and the loss of wages even if the claimant precipitates the loss of modified employment within his medical restrictions.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 13, 2001, is reversed insofar as it denied temporary total disability benefits commencing September 13, 2000.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
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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, 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 February 13, 2002 to the following parties:
Andrew Anderson, 731 22nd St. S W, Loveland, CO 80537
Longmont Toyota, Inc., 116 S. Main St., Longmont, CO 80501-6216
HIH Insurance, _ Janet Brown, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Robert A. Garcin, Esq., 903 N. Cleveland Ave., #A, Loveland, CO 80537 (For Claimant)
Michael A. Perales, Esq. and Gina L. Gradecki, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy