Opinion
W.C. No. 4-509-331
May 2, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as the ALJ denied temporary disability benefits. We affirm.
The claimant was employed as a housekeeper. On June 10, 2001, the claimant gave the employer notice of her intention to resign effective June 17, 2001, and move with her husband to New Mexico.
On June 15, 2001, the claimant suffered admitted injuries to her right hip and pelvic region. The claimant was medically released to "light duty" effective June 16, 2001. The employer provided modified employment which required the claimant to supervise other housekeeping personnel by driving a golf cart to various bathrooms at the race track. Pursuant to the claimant's previous notice of resignation, the claimant's last day of work was June 17, 2001.
On June 22 X-rays revealed a non displaced fracture of the inferior ischial pubic ramus. Thereafter, the claimant was medically released to bed rest with increased activities as tolerated and instructed to use a walker.
The ALJ found the displaced fracture was a natural consequence of the industrial injury and rejected the respondents' contention the claimant suffered an intervening injury. However, the ALJ determined the claimant was "responsible" for the termination of employment on June 17, 2001. Therefore, the ALJ determined the claimant was barred by § 8-42-105(4), C.R.S. 2002, from receiving temporary total disability benefits.
On review the claimant contends the ALJ erroneously denied temporary disability benefits. In support, the claimant contends she was not physically capable of performing the modified employment offered by the employer and, therefore, was not responsible for the termination of the modified employment. The claimant also contends there is no evidence the employer had modified work within her physical limitations as of June 22 or September 2001 when the "seasonal" employment was scheduled to end. We reject these arguments.
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. Once established, benefits continue until the respondent proves grounds for the termination of benefits. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995).
Section 8-42-105(3)(b), C.R.S. 2002, terminates temporary disability benefits when the claimant returns to modified employment. "Modified employment" under § 8-42-105(3)(b) means employment within the restrictions established by the attending physician. Herrera v. Thompson School District, W.C. No. 4-114-576, (May 18, 1994); Holt v. Hyper Shoppes Colorado, Inc., W.C. No. 4-176-897, (November 17, 1994).
The question of whether the claimant returned to modified employment within her medical restrictions, is one of fact for resolution by the ALJ. Safeway Stores, Inc. v. Husson, 732 P.2d 1244 (Colo.App. 1986); Hill v. McLane Western Inc., W.C. Nos. 4-135-519 4-135-548(October 15, 1993). Consequently we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
The record contains evidence the claimant worked 9 hours on June 16 and 8.75 hours on June 17 without telling the employer she was physically unable to perform the assigned duties. (Tr. p. 33). Based on this evidence the ALJ reasonably inferred that the claimant returned to modified employment within her undefined "light duty" restriction.
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." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002), the court concluded § 8-42-105(4) introduces into the Act a limited concept of "fault" which focuses on the reason or reasons for the termination of employment. A claimant is "responsible" if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
The ALJ's determination that the claimant voluntarily quit the employment on June 17 for reasons unrelated to the industrial injury is supported by substantial evidence in the record. Consequently, we must uphold the ALJ's determination the claimant is responsible for the termination of the modified employment.
As argued by the claimant, we have issues 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. 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 reasoned that if 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.
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. Rather, the wage loss then resulted from the disability caused by the injury. In other words, in the absence of the volitional conduct the claimant would still have suffered a total wage loss because the worsened condition precluded him from being physically able to perform the modified work that was offered. Cf. 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).
Nevertheless, in Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the court rejected our reasoning. The court held that in the context of § 8-42-105(4) the term "resulting" is ambiguous because the term may encompass both direct and indirect consequences of the termination. Slip op. p. 4. The court concluded 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 court in Longmont Toyota reasoned that PDM "frustrated an employer's legitimate right to limit its liability for temporary disability benefits by placing the injured employee in a light duty position." Slip op. p. 6. The Longmont Toyota court also stated the law before PDM was that if the claimant's volitional conduct caused a termination a compensable injury was no longer recognized for purposes of temporary disability benefits.
This claim is factually similar to Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, in that the claimant alleges the change in her physical condition on June 22 precluded her from performing the duties required of the prior modified employment, and the employer failed to make a new offer of modified employment within her physical restrictions. Under these circumstances, the claimant contends the availability of "modified" employment on June 17 is not determinative of her entitlement to temporary disability benefits.
However, in Longmont Toyota the court specifically concluded that the legislative intent of § 8-42-105(4) is to "completely cut off temporary benefits whenever an injured work is responsible for the separation from the employment." Consequently, the court held that the term resulting means "any wage loss following a termination" for which the claimant is responsible, and that the statute is a "permanent bar" to the receipt of temporary disability benefits. Slip op. p. 7. Thus, the court rejected our conclusion that § 8-42-105(4) does not bar the claimant from recovering temporary disability benefits where the claimant's disability is the result of a natural worsening of the industrial injury. Rather, the only exceptions mentioned by the 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.
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.
The claimant's further arguments concerning the "seasonal" nature of the claimant's employment have been considered and do not alter our conclusions.
Moreover, we lack jurisdiction to resolve the claimant's contention that § 8-42-105(4) is unconstitutional because it punishes the injured worker for honoring a marriage contract by resigning to assist a spouse in moving out of state. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Under these circumstances, the claimant has not presented grounds which afford us a basis to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated October 9, 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 May 2, 2003 to the following parties:
Mary L. Tate, 1320 Beulah Ave., Pueblo, CO 81004
Mr. Greenwood, Pikes Peak International Raceway, 16650 Midway Ranch Rd., Fountain, CO 80817
TIG Insurance, c/o Joan Hayes, Cambridge Integrated Services, P. O. Box 52106, Phoenix, AZ 85072-2106
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado