Opinion
W.C. No. 4-712-079.
April 29, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated December 6, 2007 that denied the respondents' petition to terminate temporary partial disability (TPD) benefits and denied the claimant's claim for temporary total disability (TTD) benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted industrial injury. The insurer paid TTD benefits and when the claimant returned to modified duty for the employer, admitted liability for TPD benefits. On August 20, 2007 the claimant terminated his employment stating his modified duties were menial and not worth his time. On August 21, 2007, the claimant filed his application for hearing on the issue of TTD benefits. On August 24, 2007, the respondents filed a petition to terminate TPD benefits due to the claimant's termination of his modified employment. The claimant did not respond to the petition to terminate his TPD benefits and the petition was approved by the Division of Workers' Compensation. The claimant was responsible for his termination of employment. Therefore, the ALJ denied the claimant's claim for TTD benefits commencing with the date of his termination. However, the ALJ found the claimant's continuing temporary partial wage loss did not result from his termination. Instead, the ALJ found the claimant's TPD resulted from the admitted industrial injury and resulting restrictions. The ALJ concluded that the respondents had not demonstrated a permissible basis to terminate TPD and denied the respondents' petition to terminate TPD.
I.
On appeal, the respondents first contend that the ALJ erred in denying the respondents' petition to terminate TPD because the adjudication of the TPD issue violated respondents' due process rights. The respondents argue that the issue of TPD benefits was not endorsed for hearing in the claimant's application for hearing, that the issue was not mentioned at the commencement of the hearing and the issue was not tried by consent. The respondents contend that the ALJ erred in his conclusion that the claimant's application for hearing on the issue of TTD benefits placed the respondents on notice that the claimant did not agree with the petition to terminate TPD benefits.
Where an administrative adjudication turns on issues of fact, due process requires that the parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). The ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We therefore review the ALJ's ruling in this instance under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard); McCarthy v. Poudre Valley Air, Inc. W. C. No. 4-525-929 (June 17, 2005). An abuse of discretion does not occur unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993).
Here, the claimant's application for hearing checked off the issue of "temporary total benefits" and not "temporary partial benefits." The respondents on their response to application for hearing only checked off the issue of "temporary total benefits." At the inception of the hearing, the parties identified the only issue as temporary total disability benefits. Tr. at 3-4. At the conclusion of the hearing, the respondents objected to temporary partial disability benefits being considered because it was not endorsed as an issue and was not tried by consent. Tr. at 35.
The essential issue was the claimant's entitlement to temporary disability benefits. The interplay between TTD and TPD were inextricably mixed in the case. We note that although the respondents claim the ALJ erred in considering TPD they offered into evidence as an exhibit their petition to terminate TPD. Exhibit B. The respondents endorsed the issue of termination for cause and the claimant's termination was from his modified job for which he was receiving TPD not TTD. The respondents have not alleged any prejudice resulting from the ALJ's consideration of TPD along with TTD in his order. Cf. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077-78 (Colo.App. 1990) (ALJ's consideration of issue related to matter that parties stipulated was premature to litigate violated due process where party not afforded opportunity to confront adverse evidence or submit evidence). Under these circumstances, we cannot say that the ALJ's ruling is beyond the bounds of reason as to constitute an abuse of discretion.
II.
The respondents next contend that the ALJ erred in granting TPD benefits because the respondents' petition to terminate TPD had already been approved by the Director of the Division of Workers' Compensation (Director). We again disagree.
Here, the respondents filed a petition with the Division of Workers' Compensation to terminate the claimant's TPD benefits on the basis that the claimant was responsible for his termination from employment. Exhibit B at 7. The claimant failed to object and in a document dated September 19, 2007, a person from the claims management unit informed the carrier that Rule 6-4 allowed the carrier to "suspend, modify or terminate disability benefits as of the date of the petition." Exhibit B at 5. The respondents contend that the "Director's order" approving the petition to terminate compensation was a final order and not subject to collateral attack under the doctrines of collateral estoppel and res judicata. In our opinion, the claims management document did not operate under the doctrines of claim or issue preclusion in such a way as to be conclusive on the issue of TPD in the subsequent hearing held before the ALJ.
We first note that it is the "Director" along with ALJs that have original jurisdiction to hear and decide all matters arising under the Workers' Compensation Act (Act). Section 8-43-201, C.R.S. 2007; see Giddings v. Industrial Claim Appeals Office 39 P.3d 1211 (Colo.App. 2001); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). The Director and ALJs share the same powers in connection with hearings concerning any controversy over any issue under the Act, and both may issue orders. Section 8-43-207(1)(k), C.R.S. 2007. Furthermore, the definition of an "order" under the Act includes any decision or determination arrived at by the Director or an ALJ. Section 8-40-201(15), C.R.S. 2007. We further note that § 8-43-215 C.R.S. 2007, which is directed to the issue of orders, references only ALJs or the Director. These statutory references do not include persons from the claims management unit.
W.C. Rule of Procedure 6-4, 7 Code Colo. Reg. 1101-3 at 23, specifically addresses the issue of the suspension, modification or termination of temporary disability benefits by a petition. Rule 6-4(C) provides that:
If the claimant does not file a written objection with the Division within twenty (20) days of the date of mailing of the petition and response form, the Director may grant the insurer's request to suspend, modify or terminate disability benefits as of the date of the petition.
W.C. Rule of Procedure 1-1(C), Code Colo. Reg 1101-3 at 1, defines "Director" as the Director of the Division of Workers' Compensation." Here the Director did not sign the September 19, 2007 document informing the carrier they had permission to terminate disability benefits. Rather, it was signed by a person from the claims management unit.
We recognize that § 8-43-218 C.R.S. 2007 grants the Director authority to appoint claims managers to review and close cases, promote speedy and uncomplicated problem resolution of workers' compensation matters and otherwise manage claims. We further note that § 8-43-218 provides that the Director may require any party to comply with the efforts of claims mangers and any party willfully refusing to cooperate shall be subject to penalties. However, we do not read § 8-43-218 as granting claim mangers authority to issue an order which would have preclusive effect under the doctrines of claim or issue preclusion in the circumstances of this case so as to prevent the ALJ from proceeding on the issue of TPD.
III.
The respondents finally contend that the ALJ erred in concluding that the claimant's responsibility for termination does not preclude subsequent TPD benefits. The respondents, citing Anderson v. Longmont Toyota, 102 P.3d 323 (Colo. 2004), argue that except in the limited circumstances of a worsened condition, the termination statutes bar any wage loss which follows a termination for which the claimant is responsible. We are not persuaded that the ALJ erred.
We have recently ruled in Garbiso v. Wal-Mart Stores, Inc. W.C. No. 4-695-612 (March 10, 2008), that a partial wage loss can be attributable to the compensable injury even though the claimant was responsible for the termination of subsequent employment and there was no worsening of condition. In Garbiso we noted earlier, consistent decisions such as Patchek v. Colorado Department of Public Safety, W.C. No. 4-432-301 (September 27, 2001). In Patchek, the panel reasoned that the loss of wages represented by the difference between the claimant's pre-injury average weekly wage (AWW) and the wages he would have earned in the modified employment did not "result" from the claimant's termination. Rather, the panel concluded that the disputed portion of the wage loss would have "resulted" regardless of the termination and remained attributable to the industrial injury. Thus, even though the claimant was responsible for the termination of subsequent employment, he still could be entitled to temporary partial disability benefits to compensate that portion of his wage loss that continued to result from the injury.
Similarly, in Minter v. Diesel Services of Northern Colorado, W. C. No. 4-513-118 (September 10, 2002), the panel held that if a claimant is responsible for termination of employment, but the terminated employment was modified employment at a reduced wage, the "resulting wage loss" is measured by the AWW at the time of the termination. Thus, to the extent the claimant's AWW at the time of the termination is less than the AWW at the time of the injury, the difference remains attributable to the disability caused by the injury and does not "result" from the claimant's action in causing the termination. Consequently, in such circumstances, the panel citing Patchek v. Colorado Department of Safety, supra., concluded that the claimant was entitled to TPD. In Minter, the panel also noted that it had in a series of cases held the plain and ordinary meaning of the term "resulting" is the "consequence or outcome of an action." See, e.g., Lovato v. Cathedral of Sacred Heart, W.C. No. 4-463-726 (May 13, 2002) (wage loss was not the result of voluntary termination where claimant's condition subsequently worsened and he became totally unable to work).
Contrary to the respondents' argument, in our view this result is consistent with the supreme court's opinion in Anderson v. Longmont Toyota. In that case, the court held that the termination statutes did not create an "absolute bar" to the receipt of TTD following the claimant's termination from employment for cause. Rather, in the case of a worsened condition the claimant might be entitled to additional TTD despite the earlier termination. In our view, this holding is consistent with the principle that a partial wage loss can be attributable to the compensable injury following the loss of subsequent employment, even where the loss of employment is the responsibility of the claimant.
We recognize that authority exists that might be construed to support a contrary result. For example, in Homman v. Richard Alan Singer, 4-523-831 (March 12, 2003), a panel of the Industrial Claim Appeals Office ruled that the claimant's termination from the employment at the respondent employer was a permanent bar to the receipt of TTD, and that "any wage loss" subsequent to the termination was attributable to it. Hence, the panel ruled that temporary partial disability benefits could not be recovered by a claimant terminated from subsequent employment paying less than the wages earned at the respondent employer. However, we note that Homman relied upon the court of appeals' opinion in Longmont Toyota v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo.App. 2003), in which the court ruled that a termination from employment established a permanent bar to the receipt of TTD under all circumstances. As noted, the court of appeals' opinion in Longmont Toyota was subsequently reversed by the supreme court in Anderson and we conclude that the reasoning of Homman is therefore no longer consistent with the applicable law. Consequently, we find no error in the ALJ's determination to award the claimant TPD after the claimant's termination from his employment. IT IS THEREFORE ORDERED that the ALJ's order issued December 6, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
DONNIE D CLEVENGER, LEVELLAND, TX, (Claimant).
EL PASO GLASS COMPANY, INC., COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
FRANKIN D. AZAR ASSOCIATES, PC, Attn: JOHN M. CONNELL, ESQ., AURORA, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: KENT L YARBROUGH, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: LAURA AMIGROUD, DENVER, CO, (Other Party).