W.C. No. 4-474-179Industrial Claim Appeals Office.
November 23, 2001
ORDER
The claimant and the respondents petitioned separately for review of orders of Administrative Law Judge Mattoon (ALJ). The claimant seeks review of the ALJ’s order dated April 27, 2001, which granted the respondents’ petition to terminate temporary disability benefits effective September 15, 2000. The respondents seek review of the ALJ’s amended order dated June 29, 2001, which terminated temporary disability benefits effective April 19, 2001. We reverse the orders and remand the matter for determination of average weekly wage (AWW).
The pertinent facts are undisputed. The claimant was hired by the employer in August 2000. On September 7, 2000, the claimant suffered a work-related injury. The respondents admitted liability for temporary total disability benefits commencing September 8, 2000.
Pursuant to the employer’s written policy, the claimant underwent a drug test on the date of the injury. The test was positive for cannabinoids. As a result, the employer discharged the claimant on September 15, 2000.
On October 2, 2000, the respondents petitioned to terminate temporary total disability benefits effective September 15, 2000. The ALJ granted the petition to terminate in an order dated April 27, 2001. In so doing, the ALJ rejected the claimant’s contention that the drug test was erroneously positive for cannabinoids. Consequently, the ALJ implicitly determined the claimant was responsible for the termination of the employment and was therefore barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2001.
The respondents filed an admission which terminated temporary disability benefits effective September 15, 2000, and the claimant objected. In response to the claimant’s objections, the ALJ issued an order dated June 29, 2001, in which she directed the respondents to file an amended admission which terminated temporary disability benefits effective April 19, 2001.
I.
In contesting the termination of benefits first imposed in the April 27 order, the claimant contends inter alia that the ALJ erred as a matter of law in terminating temporary disability benefits. The respondents contend the plain meaning of § 8-42-105(4) compelled the termination of benefits because the statute applies where the claimant is responsible for the loss of employment in which the injury occurred. We disagree.
Temporary total disability benefits are payable where the claimant proves a causal connection between the industrial injury and a temporary wage loss. Section 8-42-105(1), C.R.S. 2001. Once the claimant sustains his initial burden of proof, temporary disability benefits continue until terminated in accordance with § 8-42-105(3)(a)-(d), C.R.S. 2001.
Section 8-42-105(4) provides “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.” Applying the rules of statutory construction, we previously concluded that in the context of § 8-42-105(4) (and identical language in § 8-42-103(1)(g), C.R.S. 2001) the term “employment” is ambiguous. See Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001); 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). In Martinez we stated:
“The term `employment’ is ambiguous because it is subject to more than one interpretation. The term could refer to any job the claimant possessed, including the one held at the time of the industrial injury itself. It could also refer to modified employment which the claimant obtains subsequent to a determination that the claimant has become a “temporarily disabled employee” as a result of the injury. Therefore, in an effort to determine the legislative intent, we shall consider the legislative history of the statutes.
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. Consequently, PDM explicitly overruled Monfort of Colorado v. Husson to the extent Monfort is inconsistent with PDM. Since PDM, the courts have consistently sought to determine whether the claimant was at fault for the loss of post-injury employment and, if so, whether 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).
It is against this backdrop that we consider that legislative history of § 8-42-103(1)(g) and § 8-42-105(4). The testimony at the hearings 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. Therefore, the legislature adopted language which precludes the ALJ from attributing a claimant’s post-separation wage loss to the effects of the industrial injury where the claimant is “responsible” for the termination of employment.
Moreover, when a statute is amended it is presumed the General Assembly intended to change the law. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558
(Colo.App. 2000). Consequently, we presume the legislature intended to overturn PDM and its progeny by the enactment of enacted § 8-42-103(1)(g) and § 8-42-105(4). In other words, the General Assembly intended to reinstate the principles applied in Monfort of Colorado v. Husson, supra, and shift the financial burden for the loss of wages to the claimant in circumstances where the claimant’s misconduct causes the termination of modified employment.”
Therefore, we concluded that § 8-42-103(1)(g) and § 8-42-105(4) are intended to apply where the claimant is terminated from post-injur modified employment.
The respondents essentially contend Martinez and McGaffey were wrongly decided. The respondents’ arguments do not persuade us to depart from our conclusions in Martinez and McGaffey.
In any event, they contend our conclusions in McGaffey do not govern this claim because the facts presented here are significantly distinguishable from the circumstances presented in McGaffey. The respondents also contend that public policy demands employers not be held responsible for lost wages caused by an employee’s illegal drug activities.
Regardless of the factual distinctions cited by the respondents, the claimant in this case, as in Martinez and McGaffey, was not terminated from post-injury modified employment. Consequently, even if the claimant was “responsible” for the termination of his employment, §8-42-103(1)(g) and § 8-42-105(4) do not apply and the ALJ erred insofar as she terminated temporary total disability benefits based on § 8-42-105(4).
Further, the respondents’ proposed interpretation of these statutes would be inconsistent with the “no fault” character of the Workers’ Compensation Act (Act). Specifically, the employer assumes liability for work-related injuries irrespective of fault, and, in return, employees receive limited benefits and are precluded from bringing a suit at common law. Digliani v. City of Fort Collins, 873 P.2d 4 (Colo.App. 1993). Under the respondents’ interpretation, temporary disability benefits would be disallowed if the claimant’s employment was terminated because of his responsibility for the injury, as opposed to responsibility for the loss of subsequent modified employment. This would undermine a fundamental tenet of the Act.
Moreover, the Act already contains a specific penalty where the employee’s injury is accompanied by misconduct. Under § 8-42-112, C.R.S. 2001, indemnity benefits are subject to a 50 percent reduction where the injury is the result of the claimant’s willful failure to comply with a rule adopted by the employer for employee safety. The reduction is available retroactive to the date of injury, even where the employer fails to assert the penalty at the time it files the initial admission of liability. Arenas v. Industrial Claim Appeals Office supra. It would be illogical, and lead to absurd results, to read the Act as limiting the employer to a 50 percent reduction of disability benefits where the employee’s misconduct is deliberate or intentional, but allowing temporary benefits to be totally denied where the employee was “responsible” for the loss of employment because he exercised some control over the circumstances leading to the injury. See Arenas v. Industrial Claim Appeals Office, supra; Popke v. Industrial Claim Appeals Office, supra (General Assembly is presumed to have intended a just and reasonable result).
To the extent the respondents have further arguments, they have been considered and are not persuasive.
The ALJ also found that none of the events listed in §8-42-105(3)(a)-(d) have occurred and that finding is amply supported by the record. Under these circumstances, the ALJ’s findings do not support the termination of temporary total disability benefits effective September 15, 2000. Therefore, we reverse the ALJ’s order which grants the respondents’ petition to terminate temporary disability benefits.
Moreover, because we set aside the termination of temporary disability, the ALJ necessarily erred in ordering the respondents to file a final admission which terminated temporary benefits effective April 19, 2001. Therefore, assuming arguendo that the ALJ had jurisdiction to enter the order dated June 29, 2001, the order must be set aside. See
§§ 8-43-301(4) and 8-43-302(2), C.R.S. 2001.
II.
The claimant also contends the ALJ erroneously failed to determine AWW. We agree.
The claimant’s November 17, 2000 response to the respondents’ application for hearing endorsed the issue of AWW. At the commencement of the hearing the claimant’s attorney requested the ALJ calculate the AWW based upon the average of the claimant’s earnings with the employer excluding the first week of employment, which was a short week. (Tr. p. 4). Furthermore, the record contains evidence concerning the claimant’s earnings from the employer. (Respondent Exhibit 3; Tr. pp. 3, 4, 19).
In the order dated April 27, 2001, the ALJ recognized that AWW was endorsed for adjudication. However, the ALJ made no determination of the AWW. Consequently, the matter must be remanded to the ALJ for the entry of an order on the AWW.
IT IS THEREFORE ORDERED that the ALJ’s orders dated April 27, 2001 and June 29, 2001, are reversed.
IT IS FURTHER ORDERED the matter is remanded to the ALJ for a determination of average weekly wage.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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 November 23, 2001 to the following parties:
Michael Palmasano, 822 Dawn Ln., Canon City, CO 81212
Contractors Labor Pool, 200 S. Virginia St., #600, Reno, NV 89501
Reliance National Indemnity, Karen West, Cambridge Integrated Services Group, Inc., P. O. Box 52106, Phoenix, AZ 85074-2106
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Gregory Daniels, Esq. and Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy