Terminating Temporary Total Disability Benefits

A panel of the Industrial Claim Appeals Office (“the Panel”) affirmed the ALJ’s order terminating the claimant’s temporary total disability (“TTD”) benefits as of the date of the order, rather than the date the claimant cancelled the scheduled surgery.

The claimant was employed as an electrician, sustaining an admitted injury when he fell from a ladder and injured his right shoulder. The respondents filed a general admission of liability and began paying TTD benefits.

Shoulder surgery was recommended by the treating physician and scheduled. The claimant cancelled this surgery three times, with the claimant providing either unpersuasive excuses or no excuse at all.

Consequently, the matter went to hearing on the respondents’ request to suspend TTD benefits on the basis that the claimant refused to undergo shoulder surgery. The ALJ granted the respondents’ request to suspend temporary disability benefits based on the claimant’s failure to undergo shoulder surgery, starting on the date of the ALJ’s order. The respondents appealed, arguing that the ALJ erred in ordering the suspension of benefits as of the date of the order, rather than the date the claimant cancelled the scheduled surgery.

The Panel first affirmed the ALJ’s conclusion regarding termination of the TTD benefits. Under C.R.S. § 8-43-404(3), an ALJ may suspend a claimant’s TTD benefits if he/she refuses to undergo treatment that is reasonable and necessary to improving his/her condition. The Panel agreed with the ALJ’s findings and held that the claimant’s TTD benefits were terminated for failure to undergo the surgery.

The Panel also affirmed the date of the TTD termination as the date of the order, rather than the date of the surgery was cancelled. The Panel explained that under C.R.S. § 8-43-203(2) (d), payments must continue according to admitted liability. Because the respondents filed a general admission of liability, those payments could only be changed by an ALJ’s order. Therefore, here, the TTD payout was not terminated until the ALJ entered his order.

Ferguson v. Lane Electric, Inc., W.C. No. 5-030-198-02 (ICAO May 5, 2018).

Claims Administration Tip:

When an injured worker cancels surgery necessary to obtain MMI, file a petition to suspend TTD pursuant to WCRP 6-4, 7 CCR 1101-3 (2018).  The petition could be granted, and a better argument exists that the date of suspension should be the date of the petition being filed.

Would you like to know more? Contact Christin Bechmann at cbechmann@pollartmiller.com or 720-488-9586.

 

From the May 2018 Pollart Miller Newsletter

2019-01-29T08:57:23-07:00