Posted by: Cliff Eley
March 24, 2009
Topic: Case Law Update

A claimant’s resigning from a job does not necessarily equate with being responsible for her termination and may not make the worker ineligible for temporary benefits. In Lozano vs. Grand River Hospital District, the ALJ ruled that the Claimant was entitled to temporary total disability benefits even though she left her job because she was unable to perform her duties due to her restrictions. The Claimant had returned to work with restrictions after her on-the-job injury. The Employer agreed to accommodate the Claimant’s restrictions by having someone available to help the Claimant with pushing and pulling more than 20 pounds. The Claimant was instructed to ask fellow employees for help. However, the Claimant was only 16 years of age and she could not get other employees to help her. She then resigned her employment in anticipation of settling her workers compensation case and because she was concerned about reinjuring her back. She later decided not to settle her case.

The Respondents argued that the Claimant was responsible for her termination and therefore was not entitled to temporary benefits pursuant to §8-42-105(4) C.R.S. That section provides that an employee who is responsible for termination is not entitled to temporary benefits. However, the ALJ ruled and the ICAO agreed that the term “responsible for termination” requires the worker to have performed some volitional act or exercised some degree of control over the circumstances resulting in termination. The ALJ found that the resignation was involuntary because it was compelled by the Claimant’s inability to do her work.

The ICAO also affirmed the ALJ’s decision that the Claimant’s average weekly wage should be based on the wages after her injury and after she received a raise. The ICAO cited Avalanche Industries v. Clark, which is reported in an earlier post. That case, decided in December 2008 by the Colorado Supreme Court, found that and ALJ has broad discretion in determining average weekly wage and can even base it on wages earned at a new employer which a claimant goes to after the injury. The Lozano case appears to be the first time that Avalanche Industries was used as precedent.

Both elements of this decision were a matter of discretion by the ALJ. The Judge could have found the Claimant to have been responsible for her termination. He could have also used a different calculation for average weekly wage. However, the ICAO found that the ALJ’s determinations were within his discretion, were supported by the evidence, and would not be overturned on appeal.

This case is important because injured workers frequently go back to work with restrictions only to find that the restrictions are being ignored by the employer. It is risky for the worker to just leave the job because it will probably lead to a judge deciding if the worker was responsible for the termination. The best advice is to advise the employer in writing that the restrictions aren’t being followed. Also, let your doctor know and, if you are represented, let your attorney know as well. Claims adjusters can also be helpful in convincing employers to abide by an injured worker’s restrictions. The better the paper trail which documents the problem the more likely you are to win at hearing should the carrier deny temporary benefits based on termination for cause provision in §8-42-105(4) C.R.S.

Claimant wins issue of termination for cause, even though she resigned from her job. Lozano vs. Grand River Hospital District, W.C. 4-734-912

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