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Grisbaum v. Industrial Claim Appeals Office of the State of Colorado2/24/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Rothenberg and Taubman, JJ., concur
In this workers' compensation case brought against Foodmark Stores, Inc. and its insurer, Pinnacol Assurance (collectively employer), Thomas Grisbaum (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying his claim for temporary total disability (TTD) benefits pursuant to § 8-42-105(4), C.R.S. 2004, and by implication, the identical provision in § 8-42-103(1)(g), C.R.S. 2004 (collectively termination statutes). We set aside the Panel's order and remand for further proceedings before the administrative law judge (ALJ).
The facts in this case are uncontested. Claimant suffered a compensable back injury in June 2001. He continued to work with no restrictions, but then resigned from his employment in January 2002. The ALJ found that claimant's resignation was voluntary.
In March 2002, claimant's pain was not improving, and for the first time he was restricted to light duty work. By May 2002, he was completely restricted from working. He had surgery in September 2002 and again in November 2002.
The ALJ determined that, beginning May 2002, claimant was unable to work as a result of his industrial injury. However, relying on Longmont Toyota, Inc. v. Industrial Claim Appeals Office, 85 P.3d 548 (Colo. App. 2003), the ALJ concluded that the termination statutes permanently barred claimant from the receipt of temporary disability benefits.
The Panel affirmed, and in an unpublished decision, we affirmed the Panel's order. Grisbaum v. Indus. Claim Appeals Office, (Colo. App. No. 03CA1488, May 6, 2004)(not published pursuant to C.A.R. 35(f)). The supreme court then reversed Longmont Toyota, Inc. v. Industrial Claim Appeals Office, supra. Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). Accordingly, this opinion was vacated and remanded for reconsideration in light of Anderson. Grisbaum v. Indus. Claim Appeals Office, (Colo. No. 04SC325, Jan. 24, 2005)(mem.).
Claimant contends that he is entitled to TTD benefits because the industrial injury, not his voluntary separation from employment, caused his inability to work. He asserts that where, as here, the disability begins and the condition worsens after the termination from employment, TTD benefits should be awarded. We agree.
The termination statutes provide that "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." Sections 8-42-103(1)(g), 8-42-105(4); see Anderson v. Longmont Toyota, Inc., supra.
Relying upon the legislative history of the termination statutes, the remedial policies underlying the Workers' Compensation Act, see § 8-40-101, et seq., C.R.S. 2004, and the procedure for reopening claims where there has been a change of condition, the supreme court in Anderson determined that the bar to receipt of temporary disability benefits is not permanent. The court concluded that it was intended only to weed out wage loss claims subsequent to voluntary or for-cause terminations of modified employment that do not involve a worsened condition. Therefore, the supreme court held that the termination statutes bar temporary disability wage loss claims only when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss. Anderson v. Longmont Toyota, Inc., supra.
The court in Anderson referred to situations involving modified employment. The court
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