Opinion
W.C. No. 4-532-481
July 25, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied his claim for temporary disability benefits in accordance with § 8-42-105(4), C.R.S. 2002. We affirm.
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. 2002. Section 8-42-105(4) 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." A claimant is "responsible" if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
In Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d__(Colo.App. No. 02CA0441, February 13, 2003) the court held that § 8-42-105(4), is a "permanent bar" to the receipt of temporary disability benefits following a termination for which the claimant is responsible. Slip op. p. 7. The court reasoned that 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 only exceptions mentioned by the Longmont Toyota 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.
The pertinent facts in this claim are undisputed. The claimant suffered a compensable back injury on June 1, 2001. On January 19, 2002, the claimant voluntarily resigned from the employment. The claimant was responsible for the termination of employment. On September 18, 2002, the claimant underwent surgery for the industrial injury which rendered him physically unable to perform any work.
Relying on § 8-42-105(4), and Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, the ALJ determined the claimant is barred from receiving temporary disability benefits commencing September 18, 2002. The claimant timely appealed.
On appeal the claimant contends Longmont Toyota was wrongly decided. The claimant also contends the holding in Longmont Toyota is unconstitutional.
The claimant recognizes that we lack jurisdiction to address his constitutional arguments. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). However, the claimant seeks to preserve the argument for further review.
Moreover, it is true that we have issued a series of decisions 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), and Krause v. Sorter Construction Inc., W.C. No. 4-525-245 (January 29, 2003), in which we concluded that the phrase "resulting wage loss" as used in § 8-42-105(4), refers to wage loss which is the consequence of the claimant's volitional conduct that caused the termination of employment. Accordingly, we concluded that the statute is not a permanent bar to temporary disability benefits, because the state of the law prior to PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995) , did not preclude a claimant from receiving disability benefits where the wage loss is the result of a worsening of his condition and not a consequence of the earlier volitional conduct which caused the loss of employment. See 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).
However, we and the ALJ are bound by published decisions of the Court of Appeals unless modified or reversed by the Supreme Court. 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 are compelled to conclude the ALJ correctly denied the claim for temporary disability benefits. See Tate v. Pikes Peak International Raceway , W.C. No. 4-509-331 (May 2, 2003).
IT IS THEREFORE ORDERED that the ALJ's order dated March 3, 2003, 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 July 25, 2003 to the following parties:
Thomas Grisbaum, 6280 Gambler Pl., Colorado Springs, CO 80908
Foodmark Stores Inc. d/b/a Cub Foods, 7635 N. Academy Blvd., Colorado Springs, CO 80920
Legal Department, Pinnacol Assurance — Interagency Mail
Kimball Gardner, Esq., 115 E. Vermijo, #101, Colorado Springs, CO 80903 (For Claimant)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado