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Longmont Toyota2/13/2003
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Casebolt and Nieto, JJ., concur
In this workers' compensation proceeding, Longmont Toyota, Inc., and its insurer, HIH Insurance (collectively employer), seek review of the final order issued by the Industrial Claim Appeals Office (Panel) which awarded temporary total disability (TTD) benefits to Andrew Anderson (claimant). We set aside the order and remand.
The following facts are not in dispute. Claimant sustained an admitted injury to his lower back on June 5, 2000, while employed as a line mechanic at a car dealership. He returned to modified light duty at full salary on July 26, 2000, but voluntarily resigned on August 31, 2000, for reasons unrelated to the industrial injury. Claimant then obtained employment, which was within his medical restrictions, with another car dealership. However, on September 13, 2000, claimant's condition worsened, he was no longer able to continue with his second employment, and he sought TTD benefits from the date he left that position.
Following an evidentiary hearing, the Administrative Law Judge (ALJ) determined that claimant's worsened condition was due to the natural progression of his work injury and was not caused by any specific intervening event which would constitute a new injury. The ALJ further found that claimant's resignation from his position with the first employer was a volitional act that severed the causal relationship between his wage loss and his work injury. Therefore, the ALJ determined that claimant was responsible for that separation and was barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2002.
On review, the Panel concluded that the ALJ had misconstrued § 8-42-105(4) as a permanent bar to all temporary disability benefits where the claimant is determined to be "responsible" for the loss of employment. The Panel held that § 8-42-105(4) precludes recovery for a wage loss only when it is the direct consequence of the independent volitional action which caused the claimant's separation from employment. The Panel then determined that the wage loss after September 13, 2000, resulted not from claimant's voluntary resignation, but from his worsened condition. The Panel, consequently, held that § 8-42-105(4) did not apply and thus claimant was entitled to TTD benefits from the date his worsened condition caused him to resign from his second employment.
Employer contends that the Panel erred in reversing the ALJ's determination that claimant was responsible for his wage loss within the meaning of § 8-42-105(4). We agree.
Section 8-42-105(4) and identical language in § 8-42-103(1)(g), C.R.S. 2002, provide: "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." (Emphasis added.)
These statutory provisions overrule PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). See Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002)(amended termination statutes reintroduce the limited concept of "fault" which was used in termination cases prior to PDM Molding and which focused on the reasons for termination apart from the cause of the injury for which compensation was sought). In PDM Molding, the supreme court held that an employee who sustained a work-related injury and was subsequently discharged for fault from the employment out of which the injury arose was not automatically ineligible for temporary disability benefits. The determining factor for post-separation benefits was whether the injury contributed to some de
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