In re Burkhartv.First Transit Transp., W.C. No

Industrial Claim Appeals OfficeJul 10, 2009
W.C. No. 4-768-009. (Colo. Ind. App. Jul. 10, 2009)

W.C. No. 4-768-009.

July 10, 2009.


FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated March 13, 2009, that ordered the insurer to pay temporary total disability (TTD) benefits. We affirm.

The claimant worked for the employer as a bus driver. On July 7, 2008, the claimant suffered an admitted industrial injury in a motor vehicle accident. On the date of the accident, the claimant was treated at Penrose Hospital and provided a blood sample for drug testing. The next day the claimant informed the general manager for the employer that she would not pass the drug test and, knowing that the employer had a policy of terminating employees who had positive post-accident drug tests, voluntarily resigned her employment. The ALJ found the claimant was responsible for her termination. However, the ALJ also found that on July 21, 2008 the claimant's condition had worsened resulting in increased work restrictions including the prohibition on driving the company vehicles. Therefore, the ALJ awarded TTD benefits from July 21, 2008 through November 16, 2008 when the claimant reached MMI.

The respondents appeal contending that the ALJ erred in awarding TTD benefits. The respondents note that the ALJ found that the claimant voluntarily resigned her employment, but that her condition worsened after her resignation. The respondents argue that the ALJ also found that the employer would have accommodated the work restrictions that existed after the claimant's worsening of condition but for the voluntary resignation. The respondents, citing Hammack v. Falcon School District 4, W.C. No. 4-637-865 (October 23, 2006); aff'd, Hammack v. Industrial Claim Appeals Office, No. 06CA2344 (Colo.App. Dec. 6, 2007) (not selected for publication), argue that the ALJ erred in his determination that because the worsening caused her to be unable to perform her regular work duties for the employer that she was entitled to TTD benefits until the occurrence of one of the terminating events specified in § 8-42-105(3), C.R.S. 2008. We are not persuaded that the ALJ erred.

The "termination statutes," § 8-42-103(1)(g), C.R.S. 2008, and § 8-42-105(4), C.R.S. 2008, contain identical language stating that "[i]n cases where it is determined that a temporarily disabled employee is responsible for termination from employment, the resulting wage loss shall not be attributable to the on-the-job injury." Here, having found that the claimant was responsible for the termination of her employment within the meaning of the termination statutes, the ALJ then correctly considered the application of Anderson v. Longmont Toyota, Inc., 102 P.3d 323(Colo. 2004) in determining whether the claimant's right to TTD was reestablished. In Anderson, the court held that the termination statutes did not constitute a permanent bar to the receipt of TTD following a discharge from employment for cause. Rather, although a claim for TTD was barred when the termination caused the wage loss, a claim was not barred "when the worsening of a prior work-related injury incurred during [the] employment causes the wage loss." Anderson, 102 P.3d at 326.

The question of whether new restrictions resulting from a worsened condition have caused the claimant's wage loss following a termination from employment remains one of fact for determination by the ALJ. Proof of the causal connection between the injury and the wage loss may be by lay or medical evidence. Cf. Lymburn v. Symbios Logic, 952 P.2d 831, 833 (Colo.App. 1997); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998). 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 ALJ entered the following findings of fact with record support. When the claimant voluntarily resigned her employment, she was released to full duty with no work restrictions. Exhibit Q at 59-60. However, on July 21, 2008 Dr. Peterson reexamined the claimant, imposed certain restrictions and specifically stated, "No driving of company vehicle." Exhibit 12 at 21. The claimant's condition worsened as of July 21, 2008, resulting in the increased work restrictions assigned by Dr. Peterson, including the prohibition on driving the company vehicles. In our opinion, the ALJ's determination that the new restrictions resulted from a worsened condition and caused the claimant's wage loss following a termination from employment is supported by substantial evidence in the record.

In Hammack v. Falcon School District 4, in contrast to the situation here, the claimant had not shown that the additional work restrictions caused a limitation on her earning capacity that did not exist when she resigned. We further note that in Hammack, as here, the record contains evidence indicating that the employer would have been willing to provide modified employment within the increased work restrictions. In Hammack, the ALJ entered a finding of fact that the claimant had failed to prove by a preponderance of the evidence that she suffered a worsened condition following her termination from employment or that such worsened condition, instead of her voluntary resignation, caused her wage loss. In Hammack, although there had been an increase in the claimant's physical restrictions, which could support a finding of worsening of condition, we found that the mere imposition of changed restrictions does not compel the conclusion that the claimant is entitled to TTD. The Colorado Court of Appeals agreed and affirmed our decision in Hammack

In contrast, here the ALJ found that after the claimant's resignation her condition worsened resulting in increased work restrictions. Therefore, in our view the ALJ correctly interpreted Anderson to require payment of TTD benefits after the claimant's worsened condition. Accordingly, we are not persuaded to disturb the ALJ's order awarding TTD benefits.

IT IS THEREFORE ORDERED that the ALJ's order Dated March 13, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

MONICA BURKHART, COLORADO SPRINGS, CO, (Claimant).

FIRST TRANSIT TRANSPORTATION, COLORADO SPRINGS, CO, (Employer).

BROADSPIRE, Attn: VY TAING, FRESNO, CA, (Insurer).

SHAKESHAFT LAW FIRM, Attn: KENNETH J. SHAKESHAFT, ESQ., COLORADO SPRINGS, CO, (For Claimant).

MCCREA BUCK, L.L.C., Attn: REGAN H ROZIER, ESQ., DENVER, CO, (For Respondents).