A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW

2007

March

 When “Termination For Cause” Might NOT Terminate Benefits

 

By Erica Weber

We are all familiar with the concept that when a claimant is responsible for his em-ployment termination the resulting wage loss shall not be attributed to the on-the-job injury.  Keep in mind, however, that the courts in Colorado have stated that simply establishing that the employee violated a company policy – sufficient for a termina-tion for cause under company policy - may not be enough to preclude claimant’s entitlement to time-loss benefits. 

The courts have stated it is not enough for the employer-respondent to simply estab-lish the violation of policy.  The analysis is whether the claimant was responsible or

The Industrial Claim Appeals Office upheld ALJ Henk’s order that denied and dismissed a petition to terminate benefits in Karen Fantin v. King Soopers, W.C. Number 4-465-221 (February 15, 2007).

The claimant sustained a low back injury on July 11, 1999 and was placed on restrictions.  Later that year she sustained a second injury to her left knee.  The parties stipulated that the claimant was terminated for cause on January 18, 2000.  Her treating physician placed her at MMI on February 21, 2000.

The claimant’s knee pain lingered and eventually required surgery.  She filed a petition to reopen on June 16, 2004 and respondent admitted liability for TTD.   The claimant was released with work restrictions following the surgery.

“at fault” for the termination.  As the su-preme court stated in Padilla v. Digital Equipment Corporation, “[A]t a minimum, to be deemed at fault or responsible for his discharge, [the] claimant must have per-formed some volitional act or otherwise have exercised some degree of control over the circumstance resulting in the termina-tion.”  Colorado Springs Disposal v. I.C.A.O. instructed us that, because a sepa-rate section of the workers’ compensation statutes provides for a 50% reduction in benefits when a safety rule is violated, the legislature specifically did not intend for a termination for a safety-rule violation to

equal a conclusion that the claimant is responsible for termination.

Consider the following examples of claimants seeking wage loss benefits following termination:

· A probationary employee misses two days of work during the probationary period and is terminated pursuant to the company’s probationary employee policy;

· An employee is terminated for excessive unexcused absences under employer’s attendance policy;

ALJ Henk found the holding in Anderson v. Longmont Toyota Inc. inapplicable to worsened conditions and concluded that in order for respondent to terminate the claimant’s temporary total disability payment, the respondent must prove that one of the conditions present in § 8-42-105(3)(a)-(d) had occurred.

The panel rejected respondent’s argument that the ALJ should have applied section 8-42-105(4) and ruled that claimant’s wage loss resulted from her responsibility for termination.  Respondent argued that but for her termination she could have returned to the modified work she was doing when terminated.  Respondent filed an appeal to the Court of Appeals in early March.

ALJ Harr followed the Fantin decision in Ramirez v. Wal-Mart, W.C. Number 4-689-381 (March 5, 2007).

You’re Fired…

So Long as Your Injury Remains Stable!

 

Fran McCracken rejoined the firm after a brief sabbatical.  Fran practices in the areas of workers’ compensation and insurance defense.

Tiffany Scully moved to the law firm of McElroy, Deutsch, Mulvaney & Carpenter, LLP.

HB 1176 would allow an injured employee to select his treating physician from an employer-provided list of at least two unaffiliated physicians or at least one health care network.  The bill was referred to the House Committee of the Whole earlier this month after an 8-3 vote.