Temporary Total Disability

Termination for cause: Panel rejects its prior interpretations of Longmont Toyota to affirm award of temporary disability.

A claimant is entitled to temporary total disability (TTD) benefits when an industrial injury caused the claimant’s wage loss. It follows that when a claimant is terminated for a volitional act (e.g., failing a drug test), the wage loss is attributable to the volitional act and not the industrial injury; therefore, the claimant is not eligible for TTD. However, even if a claimant is terminated for a volitional act, he/she can regain TTD entitlement if his/her condition worsens. This is known as the Longmont Toyota principle.

Here, claimant sustained a compensable electrocution injury. During his hospitalization immediately after the injury, he tested positive for marijuana, which contradicted the employer’s drug-free policy. He was subsequently terminated based on this violation. At the time of his termination, it was uncontested that claimant was essentially bedridden and completely unable to work. Respondents challenged the ongoing payment of TTD and an ALJ ordered the TTD benefits terminated based on claimant’s volitional action (i.e., using marijuana) which caused the termination from his employment. Claimant did not appeal the ALJ’s order.

Claimant later applied for hearing alleging entitlement to TTD. The claimant alleged he had worsened after his termination from employment, a contention with which the ALJ agreed. The ALJ found that claimant’s physical condition had worsened after the date of the order finding him responsible for termination and barring TTD. The ALJ also found that the claimant’s earning capacity had initially improved after the date of the termination, but subsequent to the improvement, the claimant’s physical condition deteriorated, making him incapable of working in any capacity, thereby making his wage loss attributable to his injury.

On appeal, respondents relied on the Panel’s previous decisions, including Martinez v. Denver Health Medical Center, which was decided by the Panel after the announcement of the Supreme Court’s decision in Longmont Toyota.

The Panel in Martinez specifically held that the “principle which appears to guide each of these cases is that a wage loss is ‘caused by a worsening condition’ if the worsening results in physical limitations or restrictions which did not exist at the time of the termination, and these restrictions cause a limitation on the claimant’s earning capacity which did not exist when the claimant caused the termination.”

However, the current Panel dismissed the prior Panel’s use of this language as “extraneously and unnecessarily expanded the Longmont Toyota doctrine.” The Panel further held that definitive and dispositive questions are (1) whether the injury related condition worsened; and (2) whether the wage loss at the time of worsening was attributable to the worsening or to the termination for cause.

Therefore, the Panel affirmed the ALJ’s conclusions that because the claimant improved after his termination to a point of having an earning capacity greater than zero dollars, then worsened physically which squelched any earning capacity he may have regained and the claimant’s wage loss was caused by the effects of the injury and not the termination from employment.

Frisch v. Berwick Electric Co., W.C. No. 5-033-012-02 (ICAO Sept. 11, 2018)

Would you like to know more? Contact Jessica Grimes at jgrimes@pollartmiller.com or 877-259-5693.

From the November 2018 Pollart Miller Newsletter