W.C. No. 4-490-474Industrial Claim Appeals Office.
June 18, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which terminated temporary total disability (TTD) benefits. The claimant contends the ALJ’s order erroneously granted retroactive relief from the respondents’ General Admission of Liability. We disagree and, therefore, affirm.
The claimant suffered a back injury on January 17, 2001. The respondents admitted liability for TTD commencing February 23, 2001 and terminating May 21, 2001. However, on July 19, 2002, the respondents were ordered to reinstate TTD retroactive to May 21, 2001. The Panel affirmed the order on appeal.
On January 14, 2003 the respondents filed a General Admission of Liability which admitted liability consistent with the July 19 order. The respondents also sent the claimant a check for past due TTD benefits.
Between September 21, 2002, and December 16, 2002, the claimant worked for a third party employer. The claimant was off work for personal reasons until early January and then quit the employment on January 15, 2003. The claimant testified that he told his attorney about the employment. However, the attorney did not report the wages to the respondents until receipt of the past due TTD benefits.
Based on information from the claimant’s attorney that the claimant had seasonal employment which ended December 15, 2002, the respondents’ filed an amended General Admission on February 13, 2003, which admitted liability for temporary partial disability (TPD) benefits between September 22 and December 15, 2002 and TTD commencing December 16, 2002. Relying on §8-42-113.5 C.R.S. 2003, the respondents also asserted that the resulting overpayment would be recovered by reducing the claimant’s TTD benefits commencing February 7, 2003.
In a prior order dated May 29, 2003, the ALJ determined the respondents’ unilateral overpayment recovery was a violation of the Rules of Procedure, Part IX(C)(1)(c), 7 Code Colo. Reg. 1101-3 and, therefore, imposed a penalty. The order also required the respondents to pay TTD commencing December 15, 2002.
On review of the May 29 order, a division of the Panel concluded that § 8-42-113.5 allowed the respondents unilaterally to recover overpaid benefits due to the claimant’s receipt of wages from a third-party employer. Therefore, on January 27, 2004, the Panel reversed the May 29, 2003 order insofar as it imposed a penalty against the respondents.
In the interim the respondents filed an Application for Hearing and requested permission to terminate TTD benefits effective January 15, 2003, based on the claimant’s voluntary resignation from the third party employment. In so far as pertinent, the ALJ implicitly determined that the claimant was responsible for the termination of employment on January 15, 2003. Therefore, on February 12, 2004, the ALJ granted the respondents’ request to terminate TTD effective January 15, 2003. The claimant timely appealed.
On review of the February 12 order, the claimant contends the ALJ erred insofar as he granted retroactive relief from the respondents’ February 13, 2003 General Admission of Liability. We perceive no reversible error.
As argued by the claimant, § 8-43-203(2)(d), C.R.S. 2003, provides that: “if any liability is admitted, payments shall continue according to admitted liability.” The courts have interpreted this provision to mean that if an admission of liability is filed the respondents are bound by the admission until granted prospective relief by order of the ALJ. HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990).
In HLJ Management Group Inc. v. Kim, supra, the respondents admitted liability for TTD. The claimant objected to the admitted average weekly wage and the consequent TTD rate. An ALJ determined the claimant’s average weekly wage was less than the admitted rate and reduced the claimant’s prehearing TTD benefits accordingly. The court held the respondents were limited to prospective relief from their improvidently filed admission for TTD benefits based on an average weekly wage in excess of that to which the claimant was actually entitled. See also, Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). In so doing, the court emphasized that the purpose of the predecessor statute is to bind respondents to admissions of liability where there is no legitimate controversy, while permitting respondents to “obtain relief from improvident or erroneous admissions.” Id. at 252.
In this case, the respondents’ February 2003 General Admission admitted liability for TTD benefits beginning December 16, 2002. However, unlike the facts in HLJ the respondents did not seek to withdraw the February 2003 admission. Neither did the respondents seek to modify admitted benefits. To the contrary, the respondents requested a determination that their liability for ongoing TTD terminated January 15, 2003. Thus, this case is legally distinguishable from HLJ.
Further, the ALJ entered no order concerning the respondents’ recovery of the overpayment resulting from the termination of TTD effective January 15, 2003. Therefore, we reject the claimant’s contention that the ALJ’s order afforded the respondents retroactive relief from the General Admission.
Contrary to the claimant’s further contention the respondents were not estopped by the ALJ’s May 29, 2003 order from seeking permission to terminate TTD benefits effective January 15, 2003. The ALJ’s May 29 order required the respondents to pay, “TTD benefits at the rate of $593.81 per week commencing December 15, 2002, and continuing until modified or terminated according to law.” Thus, the order obligated the respondents to pay TTD for December 15, 2002, but preserved the respondents’ right to seek a modification or termination of liability according to law.
A claimant’s voluntary resignation from modified employment does not entitle respondents to unilaterally terminate TTD benefits under the Rules of Procedure, Part IX(C)(1) 7 Code Colo. Reg. 1101-3. Under these circumstances, the respondents properly applied for a hearing and requested permission to terminate TTD benefits. See Rule IX(D).
There is substantial evidence in the record to support the ALJ’s finding that the claimant voluntarily resigned from modified employment on January 15, 2003. Further, the ALJ’s findings support the order terminating TTD effective January 15, 2003. § 8-42-105(4), C.R.S. 2004.
However, the claimant contends the ALJ erroneously found he was barred from receiving TTD benefits under § 8-42-105(4). The claimant contends § 8-42-105(4) applies only to a termination of employment with the respondent-employer. We disagree.
To receive temporary disability benefits, a claimant must establish a causal connection between the industrial disability and the loss of wages. Section 8-42-103(1), C.R.S. 2003. Section 8-42-103(1)(g) and identical language in §8-42-105(4) (termination statutes) 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.” The claimant is responsible for the termination of employment if the claimant exercises some control over the circumstances leading to the separation. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002).
The Workers’ Compensation Act defines the term “employment” as:
“any trade, occupation, job position or process of manufactory or any method of carrying on any trade, occupation, job, position or process of manufacture in which any person may be engaged.”
In Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, the court held that the ordinary, “all-inclusive” meaning of the term employment applied in the termination statutes because the termination statutes were enacted to apply to a wide range of circumstances. In contrast, the court noted that had the General Assembly intended to exclude certain employments from the application of § 8-42-105(4) it could have tailored the statute accordingly. Id at 1063. Therefore, we reject the claimant’s suggestion that in the context of §8-42-105(4) the term employment is confined to employment with the pre-injury employer.
Further, in Colorado Springs Disposal the court sited Monfort of Colorado v. Husson, 725 P.2d 67 (Colo.App. 1986), overruled on other grounds by Allee v. Contractors Inc., 783 P.2d 273 (Colo. 1989), as one the various fact patterns intended to be governed by the termination statutes. In Monfort of Colorado v. Husson, supra, the claimant was terminated for cause from post-injury modified employment with the employer in whom he was employed at the time of the industrial injury. However, the claimant had periodic employment with other employers up to the date he reached maximum medical improvement. The court concluded the claimant was not at fault for the loss of modified employment from the preinjury employer but found insufficient evidence concerning the reasons for the termination of the claimant’s subsequent employment. Therefore, the court set aside the award of TTD following termination of the claimant’s employment with the preinjury employer. Accordingly, Colorado Springs Disposal v. Industrial Claim Appeals Office, supra, reflects the court’s conclusion that a claimant’s fault in the loss of third party employment is also subject to the termination statutes.
The claimant’s reliance on Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted, March 8, 2004 (03SC450), for authority to the contrary is mistaken. Although the facts in Longmont Toyota, are distinguishable, the court held that the termination statutes were enacted to “resurrect” former law which existed prior to PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) (claimant found to be at fault for a termination of employment not permanently barred from receiving temporary disability benefits if the subsequent wage loss was “to some degree” a consequence of the industrial injury). Expressly citing Monfort of Colorado v. Husson, the Longmont Toyota, the court concluded that prior t PDM the applicable law provided that “when a claimant’s voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits.” Ibid
at 550. The reference to Monfort of Colorado v. Husson, supra, is contrary to the claimant’s contention that the termination statutes are confined to the loss of employment with the pre-injury employer.
Furthermore, we and the ALJ are bound by published decisions of the court. C.A.R. 35(f). Under these circumstances, we conclude the ALJ did not err in finding that the claimant’s voluntary resignation from the third party employment barred the claimant’s receipt of TTD under § 8-42-105(4).
Finally, we are not persuaded by the claimant’s contention that the ALJ’s interpretation of § 8-42-105(4) is contrary to the public policy of encouraging disabled workers to accept modified employment. Confined to these facts, we agree with the claimant that § 8-42-105(4) discourages a disabled worker who is capable of modified employment from quitting that employment with the intent of collecting TTD. However, because TTD benefits are limited to two-thirds of the claimant’s average weekly wage, the potential of earning more money from modified employment than TTD remains an incentive for injured workers to accept modified employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 12, 2004, 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. 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 the addresses shown below on June 18, 2004 by A. Hurtado.
Dale Scruggs, 4265 Dolphin Circle, Colorado Springs, CO 80918
Alissa Hall, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Kat Pennucci, Subsequent Injury Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Sandi Goldberg, Liberty Mutual Insurance, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)