W.C. No. 4-513-118.Industrial Claim Appeals Office.
January 21, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which awarded temporary partial disability (TPD) benefits commencing June 10, 2002. The respondents argue that because the claimant failed to accept an offer of modified employment within his restrictions, albeit at a lower average weekly wage (AWW) than the claimant earned at the time of the injury, §§ 8-42-103(1)(g) and 8-42-105(4), C.R.S. 2003 (termination statutes) disqualify the claimant from receiving TPD benefits. We reverse.
It is not now disputed that the claimant was “responsible” for the termination of his employment because he refused the employer’s offer of work within his medical restrictions. The modified employment would have paid less than the claimant’s AWW at the time of the injury.
In an order dated September 10, 2002, the ALJ denied the claimant’s request for TPD benefits commencing June 10, holding that such benefits are barred under the termination statutes. In an Order of Remand dated January 21, 2003, we set aside the ALJ’s order and remanded the matter for a determination of whether and to what extent the claimant is entitled to TPD benefits commencing June 10. We held that in the termination statutes, the phrase “resulting wage loss” refers to a “consequence or outcome of an action.” Thus, we reasoned that the loss of wages represented by the difference between the claimant’s pre-injury AWW and the wages he would have been earned in the modified employment did not “result” from the claimant’s termination. Rather, relying on our prior decision in Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001), we concluded that the disputed portion of the wage loss would have “resulted” regardless of the termination and remained attributable to the industrial injury. Consequently, we reversed the denial of TPD benefits.
On remand, the ALJ entered an order dated April 21, 2003, which awarded TPD benefits commencing June 10, 2002. The TPD benefits were calculated based on two-thirds of the difference between the claimant’s pre-injury AWW and the amounts the ALJ found the claimant would have earned if he had accepted the modified employment.
On this appeal, the respondents contend the ALJ erred as a matter of law in awarding TPD benefits. Relying principally o Longmont Toyota, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the respondents argue that the termination statutes bar compensation for any wage loss which “results” from a termination for which the claimant is responsible. We agree.
Our previous Order of Remand was entered prior to issuance o Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra. In that case, the court held the term “resulting,” as used in the termination statutes, is ambiguous because it “encompasses both direct and indirect consequences” and could be construed to “mean a wage loss that occurs immediately following a separation for cause, or broadly to mean any subsequent wage loss.” Based on an evaluation of the cases and legislative history underlying the termination statutes, the court concluded the term “resulting” is to be broadly construed and “means any wage loss for which the employee is responsible, and that, once the causative link between the industrial injury and wage loss is thereby severed, it cannot be restored.” Thus, the court held that the termination statutes establish a “permanent bar to the 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.”
In light of the Longmont Toyota decision, we have held that if the claimant is responsible for a termination of employment he may not receive TPD benefits based on the difference between the pre-injury AWW and the AWW which would have been earned in modified employment. The rationale for these decisions is tha Longmont Toyota rejects the narrower construction of the term “resulting” which was the basis of our holding in Patchek v. Colorado Department of Safety, supra. Rather, after Longmont Toyota, temporary disability benefits may not be paid based o any wage loss which follows a termination for which the claimant is responsible, and the claimant is barred from receiving any subsequent temporary disability benefits. See Glines v. One Point Employer Solutions, W.C. No. 4-528-651 (November 5, 2003); Baker v. Vail Associates Inc., W.C. No. 4-507-030 (April 29, 2003) Homman v. Richard Alan Singer d/b/a Furniture Medic, W.C. No. 4-523-831 (March 12, 2003).
We decline to depart from our holding in these cases and adopt their rationale here. It follows that the ALJ’s order must be reversed and the claimant denied TPD benefits commencing June 10, 2002, and thereafter.
The claimant argues that our prior order constitutes res judicata or law of the case, and is binding because the respondents did not appeal it. However, the Court of Appeals may review an order of the Industrial Claim Appeals Office only if the order is “final” for purposes of § 8-43-307(1), C.R.S. 2003. An order is not “final” if it does not grant or deny benefits or penalties. Section 8-43-301(2), C.R.S. 2003; Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003). An order does not become final and unreviewable unless the appealing party has exhausted or failed to exercise to all administrative review proceedings provided by statute. See Koch Industries, Inc. v. Pena, 910 P.2d 77 (Colo.App. 1995).
Here, our January 21, 2003 Order of Remand was not final and reviewable by the Court of Appals because the order did not deny any benefits nor did it determine the amount of benefits to be awarded. See Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Consequently, the respondents have yet to exhaust the administrative review process and their failure to appeal our order to the Court of Appeals did not foreclose them from raising the issue of the claimant’s entitlement to TPD benefits before us and the court.
Neither was our prior order “res judicata” concerning the claimant’s entitlement to TPD benefits. The issue was not finally adjudicated by our Order of Remand and res judicata does not apply. Kuhn v. Department of Revenue, 897 P.2d 792 (Colo. 1995).
Although the doctrine of “law of the case” may be applied to foreclose reconsideration of issues decided in the same case, it is a discretionary rule. Hence, where new facts or changes in the law render application of the doctrine inappropriate or unjust, it need not be applied. Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002), aff’d. in part rev’d. in part on other issues, Dworkin, Chambers Williams, P.C. v. Provo, ___ P.3d ___ (Colo. No. 02SC792, December 1, 2003). Here, after our first order in this case there was a further development in the law as shown by the Longmont Toyota decision. Hence, we decline to apply the law of the case doctrine to our prior order and choose to reconsider the claimant’s entitlement to TPD benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 21, 2003, is reversed, and the claim for TPD benefits commencing June 10, 2002, is denied.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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 theaddresses shown below on January 21, 2004 by A. Hurtado.
Miles E. Minter, 7194 W. Cascade Dr., Boise, ID 83704
Marybeth Snyder, Diesel Services of Northern Colorado, 1828 E. Mulberry St., Unit D, Fort Collins, CO 80524
Casualty Reciprocal Exchange, c/o Dianna West, Meadowbrook Insurance Group, 11880 College Blvd., #500, Overland Park, KS 66210
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Brett R. Parnes, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)