Opinion
W.C. No. 4-680-959.
April 15, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Connick (ALJ) dated October 17, 2008, that awarded temporary disability benefits. We affirm.
The ALJ made the following pertinent findings of fact. The claimant suffered an industrial injury to her knee and lower back on March 5, 2006. The claimant was eventually released to return to full duty and she worked full duty for the employer until she was terminated on August 17, 2006 for cause because of her volitional acts. The claimant suffered a worsened condition and an increase in disability from August 24, 2006 through September 7, 2006 when Dr. Sobel evaluated the claimant and opined that she needed surgery. The respondents recommenced temporary disability benefits from September 8, 2006, the date of her surgery, until Dr. Thompson placed the claimant at maximum medical improvement (MMI) on May 9, 2007. Beginning on March 10, 2008 and continuing Dr. Thompson had recommended work restrictions of no kneeling, squatting or crawling. These work restrictions prevented the claimant from performing her regular employment with the employer. The respondents filed an admission for temporary disability benefits through May 8, 2007 and the claimant requested a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant had not reached MMI and recommended that the claimant remain on the permanent work restrictions imposed by Dr. Thompson of no kneeling, squatting or crawling. The ALJ found that in May 2007 the employer changed its modified work program to accommodate more employees with work restrictions, and as a result of this change the employer would have been able to accommodate the claimant's work restrictions and would have sent claimant a modified work offer but for her termination in August 2006.
The ALJ determined that the claimant suffered a worsened condition and increased disability and additional work restriction following the termination of her employment, which prevented her from performing her regular work or from performing other work. Therefore, the ALJ concluded that the claimant's wage loss beginning on May 9, 2007 was caused by the worsening of her work-related injury. The ALJ determined that it was ultimately the claimant's worsening of her work-related condition, not her termination from employment that was responsible for her wage loss during the period in question. Therefore, the ALJ ordered temporary disability benefits to be paid to the claimant beginning May 9, 2007 and continuing until terminated by law. The respondents appeal and argue that we should set aside that portion of the order that awarded temporary disability benefits from May 9, 2007 forward.
I.
The respondents contend that the ALJ erred in awarding temporary disability benefits because the claimant's volitional act caused the termination. The respondents argue that under § 8-42-105(4) C.R.S. 2008 the claimant's wage loss could not be attributed to her injury because she was discharged for cause. Section 8-42-105(4) provides that in cases 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.
However, as previously noted, although it is true that the claimant was "at fault" for her discharge from employment, the ALJ found that after that discharge her condition worsened and caused the claimant's wage loss. The question of whether a worsened condition has caused the claimant's wage loss following a termination from employment is one of fact for determination by the ALJ. Hammack v. Falcon School District 49. W.C. No. 4-637-865 (October 23, 2006). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents' arguments are not directed towards the factual determinations made by the ALJ other than whether the worsened condition was the cause of the claimant's wage loss. Rather the respondents argue that because the ALJ found that the claimant would have been offered modified employment when the May 2007 work restrictions were imposed but for the August 2006 termination for cause, that the ALJ erred in awarding temporary disability benefits. The respondents reason that because the law initially dictates that the claimant's wage loss cannot be attributed to her industrial injury, the causal connection between the injury and the wage loss cannot later be "reinstated" by a worsened condition. However, in our view this argument is not consistent with the applicable law.
Here the ALJ relied on the ruling in Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004) and determined that ultimately it was the claimant's worsening of her industrial condition, not her termination, that was responsible for her wage loss. Therefore, the ALJ granted temporary disability benefits beginning May 9, 2007 and continuing. We are not persuaded that the ALJ erred.
The Supreme Court of Colorado in Anderson determined that the bar to receipt of temporary disability benefits caused by an employee's responsibility for termination of employment is not permanent. In Anderson and in the present case the claimant experienced a worsened condition that required surgery and prevented her from working. The court held in Anderson that because the worsened condition and not the termination of employment caused the wage loss, the claimant was entitled to temporary disability benefits. In our view, the ruling in Anderson supports the award of temporary benefits granted by the ALJ here.
Based upon the supreme court's restrictive interpretation of § 8-42-105(4), we have previously determined that Anderson should not be read as holding that the original basis under § 8-42-105(4) for termination of the claimant's TTD is "revived" after the claimant's physical restrictions return to those in effect prior to the time the claimant was responsible for her termination from employment. Caraveo v. David J. Joseph Co., W.C. No. 4-358-465 (September 24, 2008); Fantin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007). In a similar manner, we do not agree with the respondents here that the ALJ erred in determining that her wage loss beginning on May 9, 2007 was caused by her worsening of her industrial injury because the ALJ also found that the employer would have offered the claimant modified employment but for her termination for cause.
In our view, based on our understanding of Anderson, the intervening worsening of the claimant's compensable condition provided the basis to award additional temporary disability benefits. As the court noted in Anderson the termination statutes were only intended to "weed out wage loss claims subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition." Anderson, 102 P.3d at 330. The present case involves a worsened condition and therefore under Anderson we do not think that § 8-42-105(4) provides a basis for denying temporary disability benefits to the claimant.
II.
The respondents next contend that the ALJ erred because holding an employer responsible for a wage loss when modified work was available and would have been offered is contrary to public policy and state law. The respondents argue that the ALJ's ruling in this claim conflicts with the long-standing "employment at will" status of the State of Colorado. The respondents further argue that the ALJ's ruling would have a chilling effect on all employers with claimants whose wrongful behavior justifies termination, but who had not attained MMI status for workers' compensation claims. However, in our view this argument requires an interpretation of the statute inconsistent with Anderson. We of course are bound by Anderson and the respondents' relief, if any, lies with the legislature.
The respondents also argue that under our decision in Fantin v. King Soopers, W.C. No. 4-465-221 (February 15, 2007) TTD may only be awarded under circumstances such as those here where no evidence was presented that a modified job would have been offered but for a termination for cause. The respondents argue that because here the ALJ found that modified work would have been offered to the claimant but for her termination under Fantin, the claimant is not entitled to ongoing temporary disability benefits.
In Fantin the ALJ found that in light of the ruling in Anderson, § 8-42-105(4) does not apply to worsened conditions and concluded that in order for the respondents to terminate the claimant's temporary total disability payment, they must prove that one of the statutory conditions present in § 8-42-105(3)(a)-(d) has occurred. Section 8-42-105(3) provides that once temporary disability benefits are awarded they continue until the respondents prove the first occurrence of certain events including where the attending physician gives the employee a written release to return to modified employment, where such employment is offered to the employee in writing, and the employee fails to begin such employment. However, contrary to the respondents' argument, we do not read Fantin as holding that a hypothetical offer works to terminate the claimant's right to TTD. Rather, in Fantin we merely upheld an ALJ's order that where the claimant's condition worsened after the worker is responsible for termination of employment and where temporary total disability benefits were reinstated to comply with the court's holding in Anderson such benefits must continue until one of the conditions in § 8-42-105(3)(a)-(d) is met. Therefore, we view the ALJ's determination and our present order as consistent with Fantin. IT IS THEREFORE ORDERED that the ALJ's order dated October 17, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
EVELIN RILEY SPEER, FORT COLLINS, CO, (Claimant).
NATIONAL MENTOR HOLDINGS, INC., E MULBERRY, FORT COLLINS, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: ESIS PORTLAND WC CLAIMS, C/O: ANITA FRESQUEZ-MONTOYA, TAMPA, FL, (Insurer).
RING ASSOCIATES, P.C., Attn: BOB L RING, ESQ., FORT COLLINS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).