Where a claimant retires from employment after sustaining an injury, and that injury does not worsen between the date of injury and the date of Maximum Medical Improvement, the retirement is considered a volitional act to end employment, which terminates temporary disability benefits under the termination statutes. See C.R.S. §§ 8-42-103(g); 8-42-105(4). The Industrial Claims Appeals Office (ICAO) held that whether the claimant was offered modified employment or not is immaterial because the employer was prevented from offering modified work as a result of claimant’s retirement.
Here, the claimant worked for the respondent employer as a mechanic until December 18, 2015. On October 18, 2015, the claimant submitted a letter announcing his decision to retire on December 18. The day before his retirement, on December 17, the claimant was rear ended in a traffic accident while transporting one of the employer’s trucks to the shop. The claimant submitted an application for a hearing seeking Temporary Total Disability (TTD) benefits between the date of the injury on December 17 and the date of MMI on March 8.
The Administrative Law Judge (ALJ) denied the request for TTD benefits. The ALJ reasoned the claimant’s retirement was a volitional act on the part of the claimant. The claimant was therefore deemed responsible for the loss of employment and the resulting wage loss could not be attributed to the effects of his injury pursuant to C.R.S. §§ 8-42-103(g) and 8-42-105(4)(a). The ICAO affirmed the ALJ’s decision, reasoning that the claimant was injured and shortly thereafter engaged in a volitional act, his retirement, to end his employment. Moreover, the claimant was provided work restrictions but the employer was prevented from offering modified work because the claimant had retired. Despite the preceding work injury, the claimant’s responsibility for his termination renders his resulting wage loss not attributable to the work injury.
Ecke v. City of Walsenburg, W.C. No. 5-002-020-02 (ICAO May 5, 2017).
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