Opinion
W.C. No. 4-782-170.
July 23, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated April 12, 2010 that denied their petition to terminate temporary disability benefits. We affirm.
We have no transcript of the proceedings or exhibits. The record consists of applications for hearing and corresponding responses, and motions and proposed orders filed by the parties, together with several orders. It appears from the ALJ's order that no testimony was taken and that he ruled from the bench after hearing the respondents' offer of proof. The ALJ found that the claimant underwent surgery and, pursuant to a stipulation, the respondents reinstated temporary total disability (TTD) benefits on November 24, 2009. A treating physician released the claimant to modified duty on December 3, 2009, but the ALJ found that the respondents did not made a written offer of modified employment because of the claimant's termination from employment. The ALJ also found that the respondents sought to terminate benefits effective January 7, 2009 on the ground that the claimant was responsible for his termination from employment. The ALJ found that the termination occurred prior to both the stipulation and the surgery.
Referring to the supreme court's decision in Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), the ALJ observed that an employee's responsibility for the termination of his employment is not permanent. The ALJ noted that, as in Anderson, the claimant experienced a worsened condition that required surgery and prevented him from working. Referring to panel decisions, the ALJ explained that Anderson should not be read as holding that the original statutory basis for terminating TTD is revived after the claimant's physical restrictions return to those in effect prior to the time the claimant was responsible for his termination from employment. Thus, the ALJ concluded that once the respondents admitted to paying the claimant TTD benefits they could not terminate those benefits on the ground that the claimant's worsened condition improved so that the claimant was in the same condition he was at the time of his termination from employment. Instead, once the respondents admitted liability for TTD benefits those benefits continued until they could establish a statutory basis for terminating the benefits. Finding no such statutory basis that would allow the respondents to terminate TTD benefits, the ALJ ordered the respondents to continue paying them.
The respondents challenge the ALJ's determination that the claimant sustained "a worsened condition that required surgery and prevented him from working." Findings of Fact, Conclusions of Law, and Order at 2, ¶ A. According to the respondents the ALJ had only medical evidence before him and took no testimony. The ALJ's order also recites that no testimony was taken at the hearing, and thus confirms that representation. However, because no transcript has been designated we are unable to determine what representations, stipulations, or other proceeding lead the ALJ to infer that the claimant's condition had worsened to the point where he required surgery. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Further, in our view the ALJ could reasonably have inferred from the stipulation that the claimant's worsened condition required the surgery. In this regard, although there is no express recitation in the stipulation that the claimant's worsened condition caused the need for surgery, we note that it recites that the parties disputed the issue whether the claimant was responsible for his termination from employment. The ALJ could reasonably have inferred that, despite the resolution of that dispute, the concession to pay TTD in the event of surgery was a recognition on the part of all parties that the basis for entitlement to TTD following a termination for fault from employment is a worsening of the claimant's condition. See Anderson v. Longmont Toyota, supra. Although the ALJ was not compelled to draw that inference, in our view, it was a plausible one and we are unpersuaded to disturb it.
The respondents further contend that they were entitled to an evidentiary hearing to establish the right to terminate TTD. However, we agree with the ALJ that the respondents were not entitled to terminate TTD benefits under the circumstances of this case. In this regard the ALJ relied on the ruling in Anderson v. Longmont Toyota Inc. We agree that Anderson supports the ALJ's conclusion that, even if he had been responsible for his termination from employment, the respondents could not terminate temporary total disability benefits paid after a worsening when his condition improved. 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 him from working. As recognized by the ALJ, the claimant's intervening worsening of condition provided the basis for the claimant's entitlement to ongoing TTD benefits.
We further agree with the ALJ that the respondents must therefore establish a proper statutory basis for terminating the claimant's TTD benefits, which the respondents failed to do. Section 8-42-105(3)(a)-(d), C.R.S. provides that TTD benefits shall continue until the first occurrence of any one of the following: (1) The employee reaches maximum medical improvement; (2) The employee returns to regular or modified employment; (3) The attending physician gives the employee a written release to return to regular employment; or (4) 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. Based upon the parties' stipulation, the ALJ found that none of these bases for terminating TTD existed and therefore ordered the respondents to continue paying the claimant TTD benefits. In this regard, we do not understand the respondents to have sought at any point to withdraw the stipulation to pay TTD. Nor is the stipulation for a closed period of TTD. Indeed, the stipulation expressly states that TTD will be continued until terminated by rule, agreement or order. As we understand the ALJ's order, he merely ruled that where TTD is voluntarily paid following a termination from employment, it may not later be terminated based upon the claimant's responsibility for that termination from employment. Under the peculiar circumstances of this case, we do not disagree and we are not persuaded by the respondents' arguments to disturb the ALJ's decision.
IT IS THEREFORE ORDERED that the ALJ's order dated April 12, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
MYLAS CHARLES STOKES, 2499 S COLORADO BLVD. #402, DENVER, CO, (Claimant).
NORDSTROM, INC., 8465 S PARK MEADOWS CENTER DR, LONE TREE, CO, (Employer).
NORDSTROM RISK MANAGEMENT, Attn: RENEE UPDEGRAFF, SANTA ANA, CA, (Insurer).
LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: JOHN SBARBARO, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: GREGORY B CAIRNS, ESQ., DENVER, CO, (For Respondents).