DECEMBER

2004

 Auto Accident Injury after Evaluation is Compensable

Turner v. ICAO, 03CA1958 (December 2, 2004): Claimant suffered injuries to his neck and shoulder in 2000, and his employer admitted liability for permanent partial disability (PPD) benefits.  Claimant objected and sought a hearing for additional benefits.  In defense of the claim, employer retained a vocational rehabilitation (VOC) expert.  Claimant traveled 45 miles to meet with the expert.  On the return trip, while leaving a restaurant parking area following lunch, Claimant suffered a second injury in an

automobile accident. 

   The administrative law judge (ALJ) found that because employer did not have a contractual obligation to provide VOC, Claimant was not in the quasicourse of employment, and therefore Claimant’s second injury was not compensable.  The Industrial Claim Appeals Office (ICAO) agreed. 

   The Court of Appeals (CA) set aside the order and held that because Claimant was required to attend a VOC evaluation once requested by employer, the injuries he

suffered en route to an evaluation, like injuries suffered en route to authorized medical care, should be compensated under the quasicourse of employment doctrine.

   The CA reasoned that Claimant was required by statute to undergo a VOC evaluation upon employer’s request as a condition of pursuing PPD benefits.  The penalty for failing to undergo such a VOC evaluation is a reduction, termination, or preclusion of PPD benefits.  The CA also  held Claimant would not have attended the VOC evaluation “but for” the fact that he suffered a compensable injury.  Therefore, Claimant was acting within the quasicourse of employment and the second injury is compensable. 

   The CA held a second injury incurred during travel to and from an evaluation by a healthcare or VOC provider regarding the first compensable injury, at the request of the employer, is compensable even though no therapeutic benefit arises from the visit. 

Employees Can Quit and Still Collect

Anderson v. Longmont Toyota, and Krause v. Sorter Construction, 03SC450 and 04SC22 (December 6, 2004):  The Supreme Court (SC) addressed two cases involving temporary total disability (TTD) benefits.  In the first case, Claimant sustained a back injury while working as a mechanic.  Claimant returned to modified work but shortly afterwards resigned.  After starting another job, Claimant’s injury worsened.  Claimant’s work was further restricted and he could no longer perform his job.  He resigned again and sought TTD benefits from his first employer.

   In the second case, Claimant was injured on the job and given modified work, however, he was soon fired.  One month later, Claimant underwent surgery and as a result, could no longer perform any job.  Claimant sought TTD benefits from his first employer.

   The SC held that § 8-42-105(4) bars TTD wage loss claims when the voluntary or for cause termination of the modified employment causes the wage loss, but not

when the worsening of a prior work-related injury incurred during that employment causes the wage loss.                            

   Section 8-42-105(4) states that in cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.  However, the SC concluded the legislature intended § 8-42-105(4) to weed out wage loss claims subsequent to voluntary or for cause termination of modified employment that do not involve a worsened condition.

    The SC found that both Claimants were physically capable of performing modified employment when they terminated their injury related employment.  Therefore, the SC held the Claimants’ worsened conditions, and not the termination of employment, caused the wage losses.  The SC held the legislature did not intend to force employees to remain at their injury related employment just so they could receive TTD benefits.

 CHB Welcomes New Attorney

Erica A. Weber

Employment Law Expertise Now Available

 

Erica brings 8 years of litigation experience to CHB.  Previously an in-house litigation and employment attorney for Denver’s Regional Transportation District,  Erica successfully defended employers and obtained jury defense verdicts in state and federal court for racial discrimination and personal injury claims, as well as workers’ compensation and personal injury lawsuits.  Erica is also admitted to practice in Wisconsin.