W.C. No. 4-587-025.Industrial Claim Appeals Office.
July 19, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied a claim for temporary disability benefits after the claimant’s termination from employment. We affirm.
This matter was before us previously. A summary of the facts is contained in our Order of Remand dated December 22, 2004, and that statement is incorporated herein. Suffice it to say that in his first order dated June 3, 2004, the ALJ found the claimant was responsible for a termination from modified employment on August 5, 2003, and therefore the claimant was disqualified from receipt of temporary disability benefits pursuant to §8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004, (termination statutes). The claimant appealed arguing that one of the ALJ’s findings of fact was not supported by the evidence, and that the totality of the circumstances showed the claimant was not responsible for the termination. In our Order of Remand we agreed with the claimant’s argument that the disputed finding of fact was not supported by the evidence, and that the erroneous finding might have influenced the ALJ’s conclusion that the claimant was responsible for the termination. Consequently, we set aside the finding and remanded the matter for entry of a new order consistent with the evidence.
On remand, the ALJ entered an order dated February 18, 2005 [order erroneously dated 2004], modifying the unsupported finding of fact and amending conclusions of law. Nevertheless, the ALJ again found the claimant was responsible for the termination from employment and denied temporary disability benefits after August 5, 2003.
The claimant petitioned to review the February 18 order. The claimant now argues the ALJ erred by failing to reinstate temporary disability benefits commencing February 17, 2004, when the authorized treating physician again imposed medical restrictions. The claimant cites Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), as authority for this proposition. The respondents reply that this argument was waived because it was not raised to the ALJ, nor was it raised to us on the claimant’s appeal from the ALJ’s first order. We agree with the respondents.
In the Anderson case the Supreme Court held that a claimant who is responsible for a termination of modified employment is not barred from receiving temporary disability benefits if the claimant’s condition subsequently worsens and the worsening is the cause of additional wage loss. 102 P.3d at 326. When the claimant’s condition worsens the wage loss does not “result” from the separation within the meaning of the termination statutes. In reaching this conclusion the Supreme Court reversed the judgments of the Court of Appeals which held the termination statutes were intended to effect a permanent bar to the receipt of temporary benefits if the claimant is responsible for a termination. See Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054
(Colo.App. 2005).
As a preliminary matter we note that the burden of proof is on a claimant who has been found responsible for a termination to establish a subsequent worsening of condition and consequent wage loss. This is true because in such a procedural posture the claimant is the party asserting an affirmative basis for changing the status quo with respect to temporary benefits. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 20 P.3d 1209 (Colo.App. 2000) (burden of proof usually on the party which seeks to alter the status quo, and assigned to the party which is asserting the affirmative of a proposition).
Here, the claimant’s Application for Hearing does not mention any claim for temporary benefits based on a worsened condition. After the respondents raised the termination statutes as an affirmative defense to the claim for temporary benefits, the claimant did not argue to the ALJ at the commencement of the hearing, or in his post-hearing position statement, that if the ALJ were to find him responsible for the termination the ALJ should reinstate temporary benefits commencing February 17, 2004, based on a worsened condition.
As such, the claimant failed to raise an affirmative claim for relief, and may not do so for the first time on appeal. See Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). The case for waiver is particularly compelling here since any argument based on worsened condition and consequent wage loss would have required the ALJ to make specific findings concerning the worsening and the degree of impairment resulting from it. Moreover, when the matter went to hearing before the ALJ on April 24, 2004, the Supreme Court had already announced on March 8, 2004, that it would grant the petitions for certiorari in th Anderson case to determine whether the “court of appeals erred when it construed section 8-42-105(4) as permanently barring claimants who are responsible for their separation from employment from receipt of temporary disability benefits when their conditions attributable to the work-related injuries worsen.”
Finally, the claimant’s failure to raise the worsened condition issue on appeal from the ALJ’s first order also constitutes a waiver of the right to raise it now. If, after an appeal and remand, a judgment is amended, parties significantly affected by the amendment must be afforded an opportunity to appeal. However, “if the rights of the appealing party are not materially affected by the amendment and the relief from the judgment could have been sought prior to the amendment, the time for appeal is not extended. Mosley v. Industrial Claim Appeals Office, 78 P.3d 1150, 1152 (Colo.App. 2003).
Here, the “amendment” contained in the ALJ’s February 18 order did not concern the issue of worsened condition and did not materially affect the claimant’s rights with respect to that issue. Further, in the first petition to review the claimant did not raise the alleged worsening of condition as a basis for awarding temporary benefits in February 2004, but contested only the findings of fact and the issue of responsibility for the termination. However, the claimant could have, and should have raised the issue of worsened condition as a basis to modify the ALJ’s first order. Consequently, the claimant’s failure to raise the issue constitutes waiver of the argument. Mosley v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 18, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
Vaughn A. Green, Grand Junction, CO, Job Site, Inc., Grand Junction, CO, Kurt Lawrence, American Compensation Insurance Company, Minneapolis, MN, Richard T. Gurley, Esq., Grand Junction, CO, (For Claimant).
Douglas A. Thomas, Esq., Greenwood Village, CO, (For Respondents).