Opinion
W.C. No. 4-493-545
April 30, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied temporary disability benefits under § 8-42-103(1)(g), C.R.S. 2003. 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. 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."
In Longmont Toyota Inc., v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), cert. granted, March 8, 2004 (03SC450), the court held that the termination statutes were enacted to "resurrect" former law and overrule PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). PDM stood for the proposition that a claimant found to be at fault for a 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 former law, according to Longmont Toyota, was 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. Thus, in Longmont Toyota the court concluded that the termination statutes create 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. Ibid at 551. 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." Ibid at 551.
On December 22, 2002, the claimant suffered a compensable low back injury while employed at Southpark Tire Auto (Southpark). The claimant subsequently underwent two back surgeries. Thereafter, the claimant resumed employment at Southpark. On April 26, 2003, the claimant quit the Southpark employment and accepted employment with another employer.
The ALJ found the claimant voluntarily terminated the employment at Southpark for reasons unrelated to the industrial injury. Therefore, the ALJ determined the claimant was responsible for the termination and barred from receiving temporary disability commencing June 24, 2003 when the claimant's condition worsened because of a reherniation at the site of the industrial injury.
On review the claimant does not dispute the ALJ's finding that he voluntarily resigned from Southpark. However, the claimant contends Longmont Toyota was wrongly decided and seeks to preserve that issue for further review. In particular the claimant contends the holding in Longmont Toyota exceeds the legislative intent of enacting the termination statutes to reinstate the law prior to PDM. The claimant argues that contrary to the court's conclusions the prior law is embodied in 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). Further, the claimant contends that Donn supports his claim for temporary disability benefits on account of the worsened condition.
We are bound by published decisions of the Court of Appeals unless and until 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, the ALJ's order is consistent with Longmont Toyota and must be upheld.
IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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 April 30, 2004 by A. Pendroy.
James E. Bucsi, 11663 W. Saratoga Ave., Morrison, CO 80465
Southpark Tire and Auto, 8081 A S. Broadway, Littleton, CO 80123
Legal Department, Pinnacol Assurance — Interagency Mail
James A. May, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Nancy C. Hummel, Esq. and T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)