Opinion
W.C. No. 4-395-505.
November 18, 1999.
FINAL ORDER.
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) dated February 25, 1999. The claimant contends the ALJ erred in denying his request for temporary disability benefits after July 13, 1998. We disagree, and therefore, affirm.
The claimant suffered an admitted injury on May 4, 1998. The ALJ found that on May 8, 1998, the respondent made a written offer of modified employment within the medical restrictions imposed by Dr. Hawke. Further, the ALJ determined that Dr. Hawke reevaluated the claimant on May 12, 1998, and again released the claimant to modified employment. The claimant reported for work on May 13, 1998. After one hour the claimant left due to pain and did not return.
Under these circumstances, the ALJ found the claimant failed to begin the offer of modified employment. Therefore, the ALJ determined that pursuant to § 8-42-105(3)(d), C.R.S. 1999, and Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998), the claimant's entitlement to temporary total disability terminated May 12, 1998.
The claimant's employment was subsequently terminated for job abandonment. On July 14, 1998, the claimant offered to return to modified employment. The respondent rejected the claimant's offer. Similarly, on September 1, 1998, the respondent refused the claimant's request for reemployment.
On review, the claimant concedes that his refusal to begin the offer of modified employment automatically terminated temporary disability benefits effective May 12, 1999. However, the claimant argues that § 8-42-105(3)(d) does not create a permanent bar to temporary disability benefits where, as here, the claimant demonstrates a "willingness to work" after the termination of employment and the employer provides no explanation for its refusal to rehire the claimant. The claimant contends that under these conditions the claim for temporary disability benefits is governed by the principles established in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), and not Laurel Manor Care Center v. Industrial Claim Appeals Office, supra. Furthermore, the claimant argues that PDM compels an award of temporary disability benefits commencing July 14, 1997, because he willing to work and his unemployment is "to some degree" the result of the industrial injury. We disagree.
To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. Section 8-42-103(1), C.R.S. 1999. Section 8-42-105(3), C.R.S. 1998 [amended in 1999], provides that temporary disability benefits terminate upon the occurrence of the events enumerated in § 8-42-105(3)(a)-(d).
PDM Molding, Inc. v. Stanberg, supra, stands for the proposition that the claimant's "fault" in the loss of modified employment does not preclude the claimant from receiving temporary disability benefits in connection with the subsequent wage loss, provided the claimant reestablishes a causal connection between the wage loss and the injury by proving that the industrial injury contributed "to some degree" to the wage loss. Moreover, if the claimant reestablishes a causal connection, temporary disability benefits can only be terminated when one of the events listed in § 8-42-105(3)(a)-(d) occurs.
Section 8-42-105(3)(d) terminates temporary disability benefits when:
"the attending physician gives the claimant a written release to return to modified employment, such employment is offered to the employee in writing, and the employee fails to begin such employment."
In Laurel Manor the court held that pursuant to § 8-42-105(3)(d), the claimant's entitlement to temporary disability benefits terminated when the claimant refused to accept a written offer of modified employment within her medical restrictions by not commencing work. The claimant was subsequently discharged from the employment and was unable to find alternative employment. Consequently, the claimant requested temporary disability benefits. We held that PDM governed the claimant's entitlement to temporary disability benefits after the claimant's discharge from employment. However the court rejected our reasoning and concluded that § 8-42-105(3)(d) was dispositive of the claim for temporary disability benefits unless the claimant proved that the offer of modified employment was "unreasonable." In so doing, the court concluded that our analysis would eviscerate the provisions of § 8-42-105(3)(d), because employers would never be able to rely on § 8-42-105(3)(d) to terminate temporary disability benefits if temporary disability benefits could be reinstated "without any showing that the offer of modified employment" exceeded the claimant's restrictions.
The rationale for Laurel Manor is to preclude the claimant from avoiding the effect of § 8-42-105(3)(d) by refusing to accept a written offer of employment, and then relying on the continuing relationship between the wage loss and the injury to obtain temporary disability benefits unless the employer proves that modified employment remains available to the claimant. It follows that the purpose of § 8-42-105(3)(d) would also be eviscerated if the respondent could not avoid liability for temporary disability benefits unless modified employment remained available after the claimant's employment is terminated, or the employer establishes a good reason why the claimant is not rehired. Therefore, we disagree with the claimant's contention that § 8-42-105(3)(d) does not purport to bar the claimant from receiving temporary disability benefits following his offer to return to work.
In any case, PDM places the burden of proof on the claimant where the claimant is at fault for the loss of modified employment. However, under the claimant's theory, the claimant's mere statement that he was "willing to work" would shift the burden of proof to the respondent to establish grounds to avoid liability for temporary disability benefits after such benefits were properly terminated pursuant to § 8-42-105(3)(d). Therefore, the claimant's argument is not consistent with the burden of proof as it was allocated under PDM.
Finally, the claimant argues it is unfair to apply Laurel Manor rather than PDM. However, this inequity is inherent in Laurel Manor's conclusion that terminations of temporary disability benefits under § 8-42-105(3)(d) are excepted from the rule announced in PDM. Furthermore, we and the ALJ are required to follow Laurel Manor. C.A.R. 35(a). Consequently, the claimant's argument does not establish grounds which afford us a basis to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated February 25, 1999, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed November 18, 1999 to the following parties:
Henry F. Montez, 1770 Dichter Ct., Thornton, CO 80229.
Adams County School District No. 12, 440 E. 144th Ave., Broomfield, CO 80020-9237.
Adams County BOCES Worker's Co., c/o Occupational Healthcare Mgmnt. Sv., 700 Broadway, Ste. 1132, Denver, CO 80273.
Jordon S. Levine, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For Claimant).
Bernard Woessner, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80210, (For Respondents).
BY: A. Pendroy