Opinion
W.C. No. 4-389-893
November 13, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded the claimant temporary total disability benefits following her separation from post-injury modified employment. The respondents argue that because the claimant was terminated for fault after accepting a written offer of modified employment, the claimant's right to temporary disability benefits was permanently terminated under principles announced in Laurel Manor Care Center v. Industrial Claim Appeals Office, 964 P.2d 589 (Colo.App. 1998). We affirm.
The essential findings of fact are undisputed. The claimant sustained a compensable back injury on June 20, 1998, while performing her regular duties as a nurse's aide. Medical restrictions were imposed and the claimant was unable to perform her regular job. However, the employer made consecutive written offers of modified employment within the claimant's restrictions, and the claimant accepted these offers by returning to modified work. The last of these offers occurred in September 1998.
On April 6, 1999, the claimant was discharged for violating the employer's policy against excessive absences. The ALJ found the employer warned the claimant concerning excessive absenteeism on June 22, 1998, two days after the injury.
Following the separation, the claimant remained unemployed until August 2, 1999, when she accepted another offer of modified employment. The respondents denied liability for temporary disability benefits from April 7, 1999, through August 1, 1999, except for the period from May 13, 1999, through May 28, 1999, when the claimant was totally disabled because of surgery.
The ALJ held the respondents are liable for temporary disability benefits for the disputed periods of time following the April 6 separation from employment. Applying principles announced in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995), the ALJ found the claimant was at fault for the discharge from employment because she "exercised a degree of control over the excessive absences." However, the ALJ found the claimant's continuing inability to perform her regular duties demonstrated that, to some degree, the post-separation wage loss was causally related to the industrial injury. Further, the ALJ rejected the respondents' argument that the claimant's loss of employment was, in effect, a failure to "begin" modified employment within the meaning of § 8-42-105(3)(d)(I), C.R.S. 2000. Consequently, the ALJ declined to deny benefits based on principles announced in Laurel Manor Care Center v. Industrial Claim Appeals Office, supra.
On review, the respondents contend that, once the claimant accepted the written offers of modified employment by commencing work, § 8-42-105(3)(d)(I) placed "a continuous duty upon claimant to perform" the modified work. Thus, according to the respondents, when the claimant was discharged, she "failed to begin" employment because she did not return to work. In support of this theory, the respondents reason that the statutory phrase "fails to begin such employment" refers to the written offer of modified employment. Because the respondents argue that subsection (3)(d)(I) controls this case, they also contend the claimant should be denied temporary disability benefits after April 6 under the holding in Laurel Manor Care Center v. Industrial Claim Appeals Office, supra. We reject the respondents' arguments.
The pertinent portions of § 8-42-105 provide as follows:
(3) Temporary total disability benefits shall continue until the first occurrence of any one of the following:
(b) The employee returns to regular or modified employment;
(d) (I) The attending physician gives the employee 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. (Emphasis Added).
Determination of whether this claim for temporary disability benefits is governed by subsection (3)(b) or subsection (3)(d)(I) is significant because resolution of the issue will determine whether the claim is governed by the principles of PDM Molding, Inc. v. Stanberg, supra, or by Laurel Manor Care Center v. Industrial Claim Appeals Office, supra. In PDM, the Supreme Court held that a temporarily disabled claimant's "fault" for the loss of post-injury employment does not preclude the claimant from receiving temporary disability benefits if the claimant proves that, to some degree, the post-separation wage loss is attributable to the continuing effects of the industrial injury. However, in Laurel Manor, the Court of Appeals held a claimant who declined a written offer of modified employment by failing to begin work was disqualified from receiving additional temporary disability benefits by operation of subsection (3)(d)(1). Moreover, the Laurel Manor court held that, under subsection (3)(d)(I), the claimant was not entitled to obtain temporary disability benefits by demonstrating the subsequent wage loss was to some degree caused by the injury.
Initially, we reject the respondents' argument that the rules of statutory construction mandate the conclusion the claim is governed by subsection (3)(d)(I). As a general matter, the purpose of statutory construction is to effect the legislative intent. The best indicator of legislative intent is the statutory language and, therefore, we must give the statutory words their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). In the absence of some special statutory definition, a word will be given its commonly accepted dictionary definition. White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000). If the statutory language is clear and unambiguous, it is unnecessary to resort to interpretive rules of statutory construction. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993).
The first sentence of subsection (3) unequivocally states the claimant's right to temporary total disability benefits continues until the "first occurrence" of any of the circumstances set forth in subsections (3)(a)-(d). Thus, under the clear language of the statute, the subsection which controls the claimant's right to benefits depends upon which of the grounds for the termination of benefits occurs first in time.
Under subsection (3)(b), termination of the right to temporary disability benefits occurs when the claimant returns to "modified employment." Under subsection (3)(d)(I) termination occurs when the claimant "fails to begin" modified employment offered in writing. The dictionary definition of the word "begin" is "to start to do something" or to "commence" doing something. Webster's II New College Dictionary (1995). Thus, under the plain and ordinary meaning of the statute, the claimant fails to "begin" modified employment if she does not start doing the job.
In this case, it is undisputed the claimant returned to modified employment soon after the injury, and continued in the employment until April 6, 1999. Thus, the circumstances justifying termination of temporary disability benefits under subsection (3)(b) occurred immediately after the industrial accident, and continued without interruption until April 6, 1999. Conversely, the claimant did not fail to "commence" the employment which was offered in writing. Even under the respondents's theory that subsection (3)(d)(I) imposes a continuing duty to report to work, the claimant did not "fail to begin" employment until the termination in April 6, 1999. Consequently, the statutory grounds for termination of benefits under (3)(b) occurred long before any circumstances which might justify termination under subsection (3)(d)(I). It follows that subsection (3)(b), and the case law applicable to that section, govern the claimant's right to temporary disability benefits in this case.
The respondents' reliance on Montez v. Adams County School District No. 12, W.C. No. 4-395-505 (November 18, 1999), as authority for a contrary interpretation of the statute is misplaced. In that case, the respondents made a written offer of modified employment within the claimant's restrictions, and the claimant left the employment after one hour and did not return. The claimant conceded that his conduct amounted to a failure to begin an offer of modified employment within the meaning of § 8-42-105(3)(d). Thus, we held the case was controlled by Laurel Manor rather than PDM, and the claimant was not entitled to show that his post-separation wage loss was to some degree caused by the industrial injury. The Montez case did not require us to conduct the statutory analysis implicated by this appeal.
Neither do we agree with the respondents' assertion that the ALJ's refusal to apply subsection (3)(d)(I) is contrary to the "the central holding" of Laurel Manor, or that it is contrary to public policy underlying the Worker's Compensation Act (Act). As we have previously held, the rationale for Laurel Manor's refusal to apply PDM was that in cases where the claimant fails to begin work after a written offer employment within his restrictions, the claimant could always defeat a statutory claim for termination of benefits by refusing to begin work and relying on the uninterrupted relationship between the wage loss and the industrial injury. Aguirre v. Longmont Foods, W.C. No. 4-404-040 (October 18, 1999); Dickerson v. Norwest Corp., W.C. No. 4-288-686 (December 14, 1998). For this reason, the Laurel Manor court reasoned that application of PDM standards to terminations under subsection (3)(d)(I) would "eviscerate" the statute and prevent respondents from relying on it.
However, the courts have uniformly applied a PDM analysis when the claimant returns to work and subsequently loses the employment for reasons which may or may not involve fault. See Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Black Roofing Inc. v. West, 967 P.2d 195 (Colo.App. 1998); Dickerson v. Norwest Corp., supra (authorities cited therein). In contrast to the situation where the claimant simply refuses to begin work after the written offer of modified employment, a claimant who actually performs modified work and subsequently loses the job is not in a position to establish an automatic causal relationship between the industrial injury and the subsequent wage loss.
Further, this conclusion is not at odds with principles underlying the Act. PDM itself sets forth the statutory and policy rationales for allowing a temporarily disabled claimant to establish a right to benefits even where the claimant is at fault for the loss of post-injury employment. The PDM court favorably cites an Arizona case for the proposition that a claimant who loses post-injury employment because of misconduct should not necessarily forfeit benefits "for a loss of earning capacity which, depending on the nature and extent of disability, may be quite profound." 898 P.2d at 548. We are bound by the decision of the Supreme Court.
It follows the ALJ correctly interpreted the statutes. This claim is controlled by subsection (3)(b) because the claimant returned to modified employment, and did not refuse to accept the written offer of modified employment by failing to commence work. Since subsection (3)(b) applies, the ALJ correctly concluded the claim is controlled by principles announced in PDM, not Laurel Manor.
IT IS THEREFORE ORDERED that the ALJ's order dated to January 11, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 2000. 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 November 13, 2000 to the following parties:
Carol Vawser, 520 E. Uintah, Colorado Springs, CO 80903
Liberty Heights, 12105 Ambassador Dr., Colorado Springs, CO 80921-3642
Beverly Abbate, American Compensation Insurance Company — RTW Colorado, P. O. Box 6541, Englewood, CO 80155-6541
Kathleen W. Robinson, Esq., 403 S. Tejon St., Colorado Springs, CO 80903 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy