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

Speer vs. National Mentor Holdings W.C. 4-680-959
The Industrial Claims Appeals Office further clarified the Colorado Supreme Court’s decision in Anderson vs. Longmont Toyota, 102 P.3d 323 (Colo. 2004), and it’s good news for injured workers.   The Court in Longmont Toyota limited the termination for cause statute in the Colorado Workers Compensation Act. That provision found at §8-42-105(4) C.R.S., states: “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.” Insurance carriers use this statute to deny temporary total disability benefits to anyone who had returned to work on restrictions and then either quit the job or was fired for cause.
Longmont Toyota limited the effect of the statute. The Court ruled that if someone quit or was terminated for case while back at work on restrictions, and then later had a worsening of condition and was unable to work, then they were still entitled to TTD because it was the worsening that caused the wage loss, not the termination. In the Longmont case a worker who quit his job later had to have surgery and as a result, had to take time off from his work with a subsequent employer.
Pursuant to   temporary benefits, once started, are paid out until one of the following occurs:
1.    The employee reaches maximum medical improvement
2.    The employee returns to regular or modified employment.
3.    The employee is given a full-duty release from his doctor.
4.    The employer offers work within the employee’s restrictions and the employee fails to return to work.
In the Speer case, the claimant was at fault for her termination. However, she later needed surgery and the insurance carrier paid TTD from the date of the surgery. Later, in an attempt to terminate the TTD, the Respondents argued that the employer had since relaxed its return to work policy. They argued that if the Clamant hadn’t been terminated, the employer would have taken her back to work with her current restrictions. The ALJ found that this was true, but still ruled that the cause of the Claimant’s wage loss was the injury and subsequent surgery and thus, TTD had to continue.
The ICAO affirmed the ALJ’s decision and found that the requirements of §8-42-105(3)(a)-(d) C.R.S. must still be met. This means that even if someone quits their job, if their condition worsens and they are unable to work, then they are again entitled to TTD until the statutory requirement for termination are met.   Barring a successful appeal, this case puts to rest the notion that a terminated worker’s temporary benefits end when his restrictions are the same or less than those in affect at termination or resignation. The benefits continue just as they would if the worker never was terminated or quit and was simply off work with an injury.

ICAO futher clairifies termination for cause and temporary disability benefits.

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