W.C. No. 4-525-245Industrial Claim Appeals Office.
January 29, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ awarded temporary total disability benefits after February 22, 2002. We affirm.
The claimant suffered an admitted injury on December 11, 2001. The claimant returned to modified employment until February 22, 2002, when he walked off the job site and never returned following a heated exchange with a foreman concerning the claimant’s tardiness to work that day. The employer discharged the claimant for failing to obey instructions.
On March 27, 2002 the claimant underwent surgery to treat the industrial injury. As a result of the surgery the claimant was medically restricted from returning to all work.
The ALJ found, and it is undisputed, the claimant was responsible for the termination of employment on February 22, 2002. Therefore, the ALJ determined § 8-42-105(4), C.R.S. 2002, barred the claimant from receiving temporary total disability benefits between February 22, 2002 and March 26, 2002. However, the ALJ determined the claimant’s worsened condition and surgery were the cause of the wage loss after March 27, 2002. Therefore, the ALJ determined § 8-42-105(4) did not bar the claimant’s recovery of temporary total disability benefits commencing March 27.
On review, the respondents contend the ALJ misapplied law in awarding temporary total disability benefits after a finding the claimant was “responsible” for the termination of employment on February 22. We disagree.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial disability and the loss of wages. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Once the claimant has established her entitlement to temporary disability benefits, temporary disability benefits must continue until the occurrence of one of the events listed in § 8-42-103(a)-(d), C.R.S. 2002. In PDM Molding, Inc. v. Stanberg, supra, the Supreme Court, interpreting a prior version of the statute, held that a disabled worker who is at fault for the loss of modified employment may receive temporary disability in connection with the subsequent wage loss if the injury remains “to some degree” the cause of the post-termination wage loss See 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).
However, § 8-42-105(4) and § 8-42-103(1)(g), C.R.S. 2002, which apply to injuries occurring on or after July 1, 1999 [1991 Colo. Sess Laws, ch. 90, at 266], 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. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002). Legislative history indicates the statutes were 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 employment. 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.
However, § 8-42-105(4) only precludes a claimant who has been found to be responsible for the loss of employment from recovering temporary disability benefits for the “resulting wage loss.” In a series of cases beginning with Anderson v. Longmont Toyota Inc., W.C. No. 4-465-839
(February 13, 2002), 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), we concluded that the phrase “resulting wage loss ” refers to the wage loss which is the consequence of the claimant’s volitional conduct that caused the termination of employment See also 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 disability benefits). 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 noted that 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).
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.
The facts presented here are not significantly distinguishable from the circumstances in Anderson. Although there is no dispute the claimant was physically capable of performing the modified employment available on February 22, he was medically restricted from performing any employment commencing March 27. Because the claimant would have been entitled to temporary total disability benefits commencing March 27 regardless of whether the claimant caused his discharge on February 22, the February 22 termination is not the cause of the wage loss resulting from the March 27 surgery. Consequently, the ALJ did not err in concluding that §8-42-105(4) does not bar the claimant’s entitlement to temporary total disability benefits when his condition worsened to the point that he could not perform any employment.
The respondents contend Anderson was wrongly decided and that our conclusions effectively reinstate the legal standard established by PDM. The respondents’ arguments do not persuade us to depart from our conclusions in Anderson.
Contrary to the respondents’ contentions, nothing in Anderson or the cases that followed Anderson, stands for the proposition that claimants preserve the right to temporary disability benefits, regardless of their responsibility for the loss of employment as long as the wage loss remains “to some degree” the result of the industrial injury. Rather, we do not dispute § 8-42-105(4) was enacted to preclude the award of temporary disability benefits where a claimant who is capable of employment acts in a manner that causes the loss of employment. However, the actual language of the statute limits its application to the “resulting wage loss.” Thus, where the wage loss would occur because of the injury, and regardless of the claimant’s conduct, the statute does not apply.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 16, 2002, 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. 2002. 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 _____________January 29, 2003 ______________to the following parties:
Timothy Krause, 1419 Rood Ave., Grand Junction, CO 81501
Sorter Construction, Inc., 2802 Highway 50, Grand Junction, CO 81503
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Gillian Madigan, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: __________A. Hurtado__________