Modified Offers of Employment

Nipping Wage Loss Claims in the Bud: What’s a Sufficient Modified Offer Under the Act?

It is well-settled law in Colorado that an employer may terminate a claimant’s temporary total disability (TTD) benefits, without a hearing, when the attending physician issues a written release to return to modified employment, such employment is offered to the claimant in writing, and the employee fails to begin such employment. Furthermore, when a claimant is responsible for his own termination, the resulting wage loss shall not be attributable to the on-the-job injury.

In Willhoit, the claimant worked as a cultivation tech at a marijuana farm. He signed and acknowledged receipt of the employer’s attendance policy when hired, which stated that any employee absent from work for three consecutive shifts without notifying his or her supervisor would be deemed to have voluntarily resigned. Claimant then injured his knee, and was prescribed restrictions from his authorized treating physician (ATP), including sitting for up to 7 hours per day. As a result, he could not work and the employer began paying TTD benefits. However, his restrictions were eventually decreased and the employer issued a written offer of modified employment, signed by his ATP. This “bud trimmer” position was meant to accommodate sitting for long periods of time, in line with his restrictions. Nonetheless, the claimant did not show up to work as scheduled for the next 3 days, and was eventually terminated by the employer for violation of the attendance policy. His TTD benefits were also terminated.

At hearing, claimant argued that his benefits had been wrongfully terminated, since the modified offer did not address all of the restrictions imposed by his ATP, including icing and elevating the leg. Thus, he was not mandated to commence the modified position. The ALJ disagreed and determined that the restrictions claimant cited were merely “treatment recommendations.” Furthermore, the Administrative Law Judge (ALJ) credited employer testimony, in which it was stated that the position could have accommodated all of the prescribed treatment recommendations, since nothing would have prevented claimant from applying a warm compress, ice, or otherwise elevating his leg while performing the stationary work. As a result, the ALJ denied and dismissed claimant’s claim for TTD benefits.

On review, the Industrial Claims Appeals Office (Panel) affirmed, finding that substantial evidence existed to support the ALJ’s factual findings, including the employer’s testimony regard the position and how it could accommodate the prescribed restrictions.

Claimant appealed. A division of the Court of Appeals affirmed the Panel. The Court noted that claimant’s arguments were two-fold: (1) the modified offer failed to accommodate his restrictions, as he was not a “mind reader” who could have known that the job would sufficiently accommodate his restrictions and (2) the ALJ erred by allowing oral testimony surrounding the job requirements. The division rejected both arguments. First, the division found that the employer complied with the provisions of the statute regarding modified offers of employment to terminate TTD benefits, holding that nothing in the Act required “every facet” of a modified position to be included in the description. Here, the offer set forth job duties, wages and hours, as well as a statement from his ATP that it complied with his restrictions. This was sufficient. Second, the Division found that because the nature of his job requirements were in dispute, it was proper for an ALJ to consider additional testimony from the employer, beyond the terms of the written offer itself. Accordingly, the Division affirmed the Panel’s decision to terminate claimant’s TTD benefits.

Alex Willhoit v. ICAO, Maggie’s Farm, and Pinnacol Assurance, W.C. 5-054-125, No. 18CA1523 (Colo. Ct. App. Feb. 14, 2019).

Would you like to know more? Contact Gail Benson at or 877-259-5693.

From the March 2019 Newsletter