IN THE MATTER OF THE CLAIM OF: DYLLON KARDISCO, Claimant,
v.
RED SKY CONSTRUCTION INC, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 4-931-411
Colorado Workers Compensation
Industrial Claim Appeals Office
January 15, 2019
THE
FRICKEY LAW FIRM, Attn: JANET L FRICKEY ESQ, (For Claimant)
RUEGSEGGER SIMONS SMITH & STERN LLC, Attn: KEVIN M
CARLOCK ESQ, (For Respondents)
FINAL ORDER
The
respondents seek review of an order of the Director of the
Division of Workers’ Compensation (Director) dated
September 6, 2018, insofar as it granted the claimant
temporary total disability (TTD) benefits from March 27,
2018, to April 19, 2018, totaling $1,035.00. We affirm.
The
Director made the following pertinent findings of fact. The
claimant suffered a compensable injury on October 9, 2013.
The respondents filed a Final Admission of Liability (FAL) on
February 17, 2017, indicating a maximum medical improvement
(MMI) date of December 18, 2015. The respondents admitted to
a 30% whole person impairment with a total value of
$125,779.15.
The
claimant filed an application for hearing on the issue of
permanent total disability (PTD) benefits, which was held in
abeyance by stipulation of the parties.
The
claimant then signed a vocational rehabilitation plan on May
16, 2017. Two days later, the parties stipulated that the
respondents would pay all remaining permanent partial
disability (PPD) benefits in a lump sum, without discount. On
June 5, 2017, the respondents filed a general admission of
liability (GAL) admitting for temporary total disability
(TTD) benefits from February 14, 2017, ongoing.
The
claimant participated in the vocational rehabilitation plan,
which was directed primarily at obtaining a GED. The claimant
completed the GED program in early 2018. The respondents then
notified the claimant on March 27, 2018, that they no longer
would provide vocational rehabilitation services. The
respondents filed a GAL dated April 5, 2018, which purported
to terminate TTD benefits as of March 26, 2018.
The
parties subsequently attended a prehearing conference to
address the validity of the respondents’ GAL. On May 1,
2018, a prehearing ALJ concluded the admission improperly
terminated temporary benefits and declared it void. The same
day the prehearing order was issued, the respondents filed an
FAL indicating that temporary disability benefits terminated
March 26, 2018, upon termination of vocational rehabilitation
and a pleading captioned “NOTICE RE: C.R.S.
§8-42-105(1).” The respondents contended the April
5, 2018, GAL was sufficient to provide notice of termination.
The
claimant then filed a motion seeking an order from the
Director compelling the respondents to continue paying TTD
benefits until a hearing could be held regarding the
claimant’s entitlement to any additional benefits. The
respondents argued that the statutory cap on combined TTD and
PPD benefits enunciated in §8-42-107.5, C.R.S. barred
any further payment of TTD benefits and that the termination
of TTD benefits via a GAL was appropriate.
On June
12, 2018, the Director entered his order denying the
claimant’s motion. While the Director held that there
was no authority to grant the requested relief sought by the
claimant, he nevertheless held that the respondents had
improperly terminated TTD benefits by failing to provide the
required 14 days’ written notice set forth in
§8-42-105(1), C.R.S. before terminating such benefits.
In his order, the Director explained that vocational
rehabilitation is permitted by §8-42-111(3), C.R.S.,
which allows the respondents to offer such benefits in lieu
of PTD benefits. He further explained that in cases where
vocational rehabilitation is offered, the injured worker is
obligated to accept, and the...
