Opinion
W.C. No. 4-725-758.
January 21, 2011.
ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 26, 2010, that denied the claimant's request for temporary disability benefits. We affirm the order in part, set it aside in part, and remand for further proceedings.
The claimant suffered a compensable accident on April 20, 2007 when she slipped on a wet floor at work and injured her ankle. The claimant initially lost fewer than three days of work. The claimant then continued to work until June 17, 2007, when the employer no longer placed her on the work schedule. The claimant attributed the fact of being taken off the work schedule to her repeated requests to the employer to submit an Employer First Report of Injury and to refer her for further medical treatment.
The ALJ concluded that even if the claimant's contentions were true, the missed work and lost wages after June 17, 2007 would not be due to the injury, but to the employer's reprisal for filing a claim. The ALJ concluded that a wage loss due to an employer's reprisal is not a loss under the Workers' Compensation Act of Colorado (Act) and denied the request for temporary disability benefits. The claimant brings this appeal.
I.
The claimant citing Herrera v. San Luis Central Railroad Co. 997 P.2d 1238 (Colo. App. 1999) and Lathrop v. Entenmann's, Inc. 770 P.2d 1367 (Colo. App. 1989) first argues that the ALJ erred in determining that when an employer writes an employee off the work schedule as a reprisal for filing a worker's compensation claim the worker is not entitled to temporary disability benefits under the Act. The claimant argues that such a result is not in keeping with the recognized public policy of Colorado. We are not persuaded that the ALJ committed reversible error.
In Lathrop, the court held that since an employee is granted the specific right to apply for and receive compensation under the Act an employer's retaliation against such an employee for his exercise of such right violates Colorado's public policy. Thus, the Lathrop court concluded that a violation of such a public policy provides the basis for a common law claim by the employee to recover damages sustained as a result of that violation.
In Herrera v. San Luis Central Railroad Co., supra, an employee terminated after obtaining a jury verdict under the Federal Employers' Liability Act, brought a separate action against railroad for retaliatory discharge. The court, while noting that termination of an at-will employee ordinarily does not give rise to a cause of action judicially crafted an exception, based on the public interest where the plaintiff was discharged for exercising a job-related right or privilege to which he or she was entitled. The court determined that an employee's right to seek compensation for a work-related injury is a recognized public policy exception to the at-will employment doctrine. Therefore the court ordered the civil claim to go forward on the claim for retaliatory discharge based upon a public policy exception to the general doctrine of at-will employment.
We do not dispute that Colorado law recognizes a common law claim based upon the discharge of an employee in retaliation for filing a workers' compensation claim. However, in a workers' compensation case, the claimant has the initial burden of proving entitlement to benefits by a preponderance of the relevant evidence. See Upchurch v. Industrial Commission, 703 P.2d 628 (Colo. App. 1985); Slattery v. King Soopers, W.C. No. 4-728-045 (August 15, 2008). To prove entitlement to TTD the claimant must prove the industrial injury caused a "disability." § 8-42-103(1), C.R.S.; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first is "medical incapacity" evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of "disability" may be evidenced by showing a complete inability to work, or by physical restrictions which impair the claimant's ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App. 1998).
Here the ALJ found that the claimant alleged her lost time was a result of her allegation that she was written off the work schedule in retaliation for her repeated requests to the employer to submit an Employer First Report of Injury and refer her for further medical treatment. Therefore the ALJ found that the claimant had failed to establish by a preponderance of the evidence that she had missed more than three shifts as a result of the injury and denied the claimant's request for temporary disability benefits.
We agree with the ALJ that if the claim for temporary disability benefits is based only upon the claim that the claimant was discharged in retaliation for filing a workers' compensation claim, then the claimant has not established entitlement to temporary disability benefits under the Act. Here the claimant did not suffer a disability as a result of her accident on April 20, 2007 that caused her to leave work as a result of that injury. Section 8-42-103 C.R.S. Therefore the claimant, under this theory of recovery, did not demonstrate entitlement to temporary disability benefits under the Act, although she may bring a common law claim.
II.
However, in addition to her argument based upon a retaliatory discharge, the claimant also contends that her ability to seek work was affected by physical restrictions due to her industrial injury. In this regard, the claimant generally argues that under § 8-42-105 C.R.S. and § 8-42-106 C.R.S. she is entitled to temporary disability benefits. We note that § 8-42-105 is the general statute dealing with temporary total disability (TTD) benefits and § 8-42-106 is the statute dealing with temporary partial disability (TPD) benefits.
The claimant argues she was given a "total" release from work by the initial treating physician at the Emergency Room. Exhibit A. As pointed out by the respondents, the excuse from work issued by the physician was only for 3 days. Exhibit 1 at 4. In order to be eligible for temporary disability benefits the claimant must establish that the disability lasted more than three days. Section 8-42-103(1) C.R.S.; PDM Molding, Inc. v. Stanberg, supra. The period of temporary disability is measured from the day after the employee leaves work as a result of the injury. See Ralston Purina-Keystone v. Lowry, 821 P.2d 910 (Colo. App. 1991); § 8-42-103.
Here it is true that the claimant argued that she was effectively discharged by the employer in retaliation for filing a workers' compensation claim. However, the claimant also argues that at the time of her discharge she had physical restrictions that prevented her from performing her regular employment and that would therefore entitle her to temporary total disability benefits. The ALJ did not address the claimant's entitlement to benefits under a theory of the physical effects of the injury. The claimant argued that Dr. Dickson and Dr. Rook opined that restrictions should have been placed upon the claimant from her date of injury forward and her ability to earn wages was diminished as a result of the physical effects of the injury. Tr. at 36. If at the time of her job separation the claimant had restrictions that prevented her from performing her regular job, she would have established the necessary "disability" prerequisite to entitlement to temporary total disability benefits. See Ortiz v. Charles J. Murphy Co., supra.
We are unable to determine from the order whether the ALJ did not credit this line of evidence or failed to address it. Therefore a remand is necessary for the ALJ to address the issue of whether the claimant established entitlement to temporary disability benefits based upon the physical effects of the injury as opposed to entitlement to benefits as a result of the alleged discharge in retaliation for filing a workers' compensation claim.
IT IS THEREFORE ORDERED that the ALJ's order dated June 26, 2010 is set aside insofar as it failed to address the issue of entitlement to temporary disability benefits based upon the physical effects of the injury. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein.
IT IS THEREFORE FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________ Curt Kriksciun
__________________________ Thomas Schrant
SHAWNTA R GAINES, 1907 VAN BUREN #10, COLORADO SPRINGS, CO, (Claimant).
KNS CORPORATION/MCDONALDS, Attn: JUDY ROYBAL, COLORADO SPRINGS, CO, (Employer).
WAUSAU INSURANCE CO., Attn: KIMBERLY TRAVIS, C/O: LIBERTY MUTUAL MIDDLE MARKET, IRVING, TX, (Insurer).
STEVEN U. MULLENS, PC, Attn: PATTI RAGLAND, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P. MYERS, Attn: DAVID KROLL, ESQ., DENVER, CO, (For Respondents).