W.C. No. 4-523-831Industrial Claim Appeals Office.
March 12, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded temporary partial disability benefits after June 4, 2002. We reverse.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. However, § 8-42-105(4), C.R.S. 2002, and identical language in § 8-42-103(1)(g), C.R.S. 2002, provides 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.”
In November 2001 the claimant suffered a compensable injury. She returned to modified part-time employment and the respondents admitted liability for temporary partial disability benefits in the amount of $53.56 per week. On June 4, 2002 the employer discharged the claimant for theft. The respondents then petitioned to terminate temporary partial disability benefits.
The ALJ found the claimant was responsible for the termination of the employment. Consequently, the ALJ determined the claimant was barred by § 8-42-105(4) from receiving temporary total disability benefits. However, relying on our conclusions in Anderson v. Longmont Toyota Inc.,
W.C. No. 4-465-839 (February 13, 2002), the ALJ determined the temporar partial disability benefits “resulted” from the industrial injury and the medical restrictions imposed by the treating physician which limited the claimant’s hours of work. Consequently, the ALJ determined the temporar partial loss of earnings did not “result” from the termination of employment and was not barred by § 8-42-105(4). Consequently, the ALJ denied the respondents’ petition to terminate the payment of temporary partial disability benefits.
On review the respondents essentially contend Anderson v. Longmont Toyota Inc., supra, was wrongly decided. The respondents argue §8-42-105(4) is a complete bar to all temporary disability benefits.
In a series of cases beginning with Anderson v. Longmont Toyota Inc. supra, and including Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726
(May 13, 2002); Selvage v. Terrace Gardens, W.C. No. 4-486-812
(September 23, 2002); Taylor v. Backwood Video, W.C. No. 4-501-466
(January 16, 2003), and Krause v. Sorter Construction Inc.,
W.C. No. 4-525-245
(January 29, 2003), we concluded that the phrase “resulting wage loss,” as used in § 8-42-105(4), refers to the wage loss which is the consequence of the claimant’s volitional conduct that caused the termination of employment. We reasoned that because the statute does not define the term “resulting,” the term is governed by its commonly accepted dictionary definition, which is the “consequence or outcome of an action.” Webster’s II New College Dictionary (1995); White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000). Further, we reasoned that if 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.
In Anderson v. Longmont Toyota Inc., supra, the claimant’s condition worsened after the claimant was discharged from modified employment. The claimant was responsible for the discharge. However, the modified employment exceeded the medical restrictions imposed for the worsened condition, and no modified employment within the claimant’s new restrictions was offered. Under these circumstances, we concluded the claimant’s wage loss following the worsening of his condition was not a consequence of the earlier volitional conduct which caused the loss of the modified employment. Rather, the wage loss stemmed entirely from the disability caused by the injury. In other words, in the absence of the volitional conduct the claimant would still have suffered a total wage loss because the worsened condition precluded him from being physically able to perform the modified work that was offered. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (claimant’s voluntary retirement did not preclude a subsequent award of temporary total disability benefits where the claimant’s condition subsequently worsened).
Nevertheless in Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d___ (Colo.App. No. 02CA0441, February 13, 2003), the court rejected our reasoning. The court held that in the context of § 8-42-105(4), the term “resulting” is ambiguous because the term may encompass both direct and indirect consequences of the termination. Slip op. p. 4. The court concluded the legislative history indicates §8-42-105(4) was enacted to “resurrect” former law and overrule PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), which stood for the proposition that a claimant found to be at fault for the termination of employment was not permanently barred from receiving temporary disability benefits if the subsequent wage loss was “to some degree” a consequence of the industrial injury. The court in Longmont Toyota reasoned that PDM
“frustrated an employer’s legitimate right to limit its liability for temporary disability benefits by placing the injured employee in a light duty position at full salary.” Slip op. p. 6; (Emphasis added). Th Longmont Toyota court also stated the law before PDM was that if the claimant’s volitional conduct caused a termination” a compensable injury was no longer recognized for purposes of temporary disability benefits.
This claim is factually distinguishable from the circumstances i Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra. In particular, the claimant is not attempting to “restore” a causal link between the injury and the wage loss. To the contrary, the claimant maintained the causal link between his partial wage loss of $53. 56 per week and the injury throughout the modified employment. Rather, this case is akin to Patchek v. Colorado Department of Public Safety,
W.C. No. 4-432-301(September 27, 2001), where the claimant was found to be “responsible” for loss of modified employment which paid less than his pre-injury wage. See also Minter v. Diesel Services of Northern Colorado, W.C. No. 4-513-118 (January 21, 2003). Under those circumstances, we concluded that the “resulting” wage loss was the amount paid to the claimant in the modified employment. In contrast, we reasoned the difference between the pre-injury wage and the modified employment rate of pay was a consequence of the industrial disability. Therefore, we held that the termination of employment did not preclude the claimant from receiving the temporary partial disability benefits he would have been entitled to receive if he retained the modified employment.
However, in Longmont Toyota the court specifically concluded that the legislative intent of § 8-42-105(4) is to “completely cut off temporary benefits whenever an injured work is responsible for the separation from the employment.” The court added that there was nothing in the legislative history to suggest the General Assembly intended to “limit the bar against” temporary disability benefits in § 8-42-105(4) Slip op. 6-7. Consequently, the court held that the term resulting means “any wage loss following a termination” for which the claimant is responsible, and that the statute is a “permanent bar” to the receipt of temporary disability benefits. Slip op. p. 7. The only exceptions mentioned by the court occur when the claimant’s disability is the result of a “work-related aggravation of the old injury or a new injury.” Slip op. 7.
We and the ALJ are bound by published decisions of the court until modified or reversed. C.A.R. 35(f). Further, the facts presented here do not fall into one of the exceptions discussed by the court in Longmont Toyota. Therefore, in view of the court’s conclusion that §8-42-105(4) is a “permanent” and “complete” bar to the receipt of temporary disability benefits for “any wage loss” following a termination for which the claimant is responsible, we feel compelled to conclude the ALJ was obligated to terminate temporary partial disability benefits effective June 4, 2002.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 12, 2002, is reversed. The respondents’ petition to terminate temporary partial disability benefits effective June 4, 2002, is granted.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 12, 2003 to the following parties:
Sherri L. Homman, 1984 Mineola St., Unit D, Colorado Springs, CO 80915
Richard Alan Singer d/b/a Furniture Medic, 7825 Burgess Rd., Colorado Springs, CO 80908
Brandee DeFalco-Galvin, Esq., Pinnacol Assurance-Interagency Mail (For Respondents)
Barkley D. Heuser, Esq., 625 N. Cascade #300, Colorado Springs, CO 80903 (For Claimant)
Elizabeth Koch, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
BY: A. Hurtado